Agenda packet — Ontario City Council, April 15, 2025 (part 3 of 5)

BB&K 2020

PAUL S. LEON
MAYOR

ALAN D. WAPNER

MAYOR PRO TEM

JIM W. BOWMAN

DEBRA PORADA

DAISY MACIAS

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK

JAMES R. MILHISER

CITY TREASURER

SCOTT OCHOA

CITY MANAGER

AMENDMENT NO. 1 TO THE

MODEL DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND

FREDERICK FISHER PARTNERS, ARCHITECTS

1. Parties and Date.

This Amendment No. 1 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Frederick Fisher Partners , Architects, a corporation. 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 “Model Design Services Agreement” dated October 15, 2024 (“Agreement”).

2.2 Amendment Purpose . T he City and Consultant desire to amend the A greement to increase amount by $186,709 for the design of north wing gallery, welcome desk and electrical infrastructure upgrade for new total not-to-exceed compensation amount of Four Hundred Thirty-Six Thousand Seven Hundred and Nine Dollars ($436,709).

2.3 Amendment Authority. This Amendment No. 1 is authorized pursuant to Section

3.37 of the Agreement.

3. Terms.

3.1 Amendment. Section 3.1.1 and Section 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 422
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hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld.

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 Four Hundred Thirty -Six Thousand Seven Hundred and Nine Dollars ($436,709) (“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 amended to add Attachment A attached hereto and incorporated herein by reference.

3.2 Continuing Effect of Agreement . Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1.

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. 1.

3.4 Severability. If any portion of this Amendment No. 1 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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BB&K 2020

SIGNATURE PAGE FOR AMENDMENT NO. 1 TO DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO

AND FREDERICK FISHER PARTNERS, ARCHITECTS

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 as of the day and year first above written.

CITY OF ONTARIO FREDERICK FISHER PARTNERS,

ARCHITECTS
By:

Its:

Printed Name:

By:

Its:

Printed Name:

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

Approved By:

Scott Ochoa
City Manager
Approved as to Form:

_____________________________________
Best Best & Krieger LLP
City Attorney

Attested By:

City Clerk

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Ontario Museum of History and Art
Att: Gil Mars
Design & Construction Project Manager
1333 S. Bon View, Ontario CA 91761
06 March, 2025
Proposal for Architectural Services for North Gallery Project at the Ontario Museum of History and Art (OMHA).

Dear Gil:

Thanks for taking the time to speak with us about the improvement project for OMHA. We are thrilled with the possibility of collaborating with you and the Museum Staff in developing solutions to enhance the North Gallery
We thought about your goals and aspirations for the project and realized the best way forward is to engage OMHA in a Concept Design phase to validate our project assumptions and goals. Once we have a better understanding of the project scope and budget, we can finalize a contract.

We understand the schedule from design through construction may be approximately 18 months. We are including a workplan/schedule to better understand milestones and proposed timing of phases, including construction.

The following outlines the basic services with a Concept Design Phase to start:

CONCEPT DESIGN PHASE (6 weeks)
During the concept design phase, the architect and client work together to create the long-term goals and anticipated obstacles, for the overall design process. In this phase, potentially the most important part of design will occur. We work with you and your team to define the architectural solutions to improve exhibition spaces and Gift
Shop and Welcoming Desk.

We consider this the IDEA phase and will come up with conceptual schemes and then work to distill them down to one or two ideas that best suit your needs.

Hector Semidey
Attachment A
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Deliverables: Concept Sketches and imagery, Floor Plan Sketches, Image library and Final presentation package. The scope of work for concept/schematic outlined will be billed as a fixed fee of $30,000. We anticipate the time frame will be 6 weeks to complete the concept design. BASIC SERVICESSCHEMATIC DESIGN PHASE (6 weeks)After Concept design we would define one scheme and take it through Schematic Design. During Schematic Design (SD), we would further develop one scheme through study drawings, documents, or other media that illustrate the concepts of the design and include spatial relationships, scale, and form for the owner to review. During SD phase we initiate coordination with MEP engineers and Lighting designer to develop solutions that reflect the clients goals and the support the design intent. We will also discuss options with Electrical and Mechanical engineers for early procurement of materials to maintain desired project schedule.This phase produces a final schematic design, to which the owner agrees after consultation and discussions with the architect. Construction cost estimates would be provided by Cost Estimator. The design then moves forward to the Design Development phase. Deliverables: Floor plans, reflected ceiling plans, sections, elevation, other illustrative materials; computer images and/or renderings. DESIGN DEVELOPMENT PHASE (6 weeks)Design Development (DD) services use the initial design documents from the schematic phase and take them one step further. This phase lays out mechanical, electrical, plumbing, structural, and architectural details. Typically referred to as DD, this phase results in drawings that often specify design elements such as material selections. The level of detail provided in the DD phase is determined by the project requirements. The DD phase often ends with a formal presentation to, and approval by, the owner. Deliverables: Design Development includes floor plans, sections, millwork, reflected ceiling/lighting plan and elevations with full 426
dimensions. Outline material specifications are issued at the end of the DD Phase. CONSTRUCTION DOCUMENT PHASE (8 weeks)The next phase is Construction Documents (CDs). Once the owner and architect are satisfied with the documents produced during DD, the architect moves forward and produces drawings with greater detail. These drawings typically include specifications for construction details and materials.Deliverables: The CD phase produces a set of drawings that include all pertinent information required for the contractor to price and build the project.BID OR NEGOTIATION PHASE We would suggest cost estimates, provided by others, occur at the completion of Concept Design, Schematic Design, Design Developmentand Construction Documents. The cost estimate can be used as a reference tool to compare bids from possible General Contractors. Deliverables: The final deliverable is a construction contract. CONSTRUCTION PHASE (26 weeks/ 6 months)CA services begin with the initial contract for construction and terminate when the final certificate of payment is issued. The contractor to build the project as specified in the CDs as approved by the owner. Questions may arise on site that require the architect to develop architectural sketches: drawings issued after construction documents have been released that offer additional clarification to finish the project properly. During this phase we will also respond to questions in writing by the contractor and will review submittals, material samples and substitution requests. The final month of the construction process is dedicated to punch list and project close out.PROJECT SCOPERenovation of approximately 3,200 sf of Gallery space and 500 sf at gift shop and entry vestibule. Coordination with MEP systems and lighting design. 427
FEECurrently we estimate our full service fee including Concept, Schematic Design, Design Development, Construction Documents, Bidding and Construction Observation is $250,000. These fees listed here include architectural design services only. The breakdown of Basic Services is as follows:Concept Phase $30,000Schematic Design $42,000Design Development $50,000Construction Documents/Bid $68,000Construction Administration $60,000Total Architectural Fee: $250,000We assume CA phase is 6 months. Additional consultants required for this project include MEP engineers Structural Engineer, Lighting Designer and Cost Estimator. Landscape Architects to provide services for Concept Design. See attached proposals. 428
COMBINED FEEOntario Museum of History and ArtArchitectural and Engineering Fee StructureArchitectural $250,000Mechanical / T24 Energy Modeling $39,353Electrical $44,313Plumbing $17,073Data/Telecom/Low Voltage/AV $18,970Structural $5,000Landscape Design-Concept $22,000Lighting Design $23,000Commissioning $12,000Total Basic Services $431,709Reimbursables$5,000Total Fee Combined $436,709Supplemental ServicesCost Estimator $11,750INVOICINGBilling shall be invoiced as work is completed. Invoices are due and payable upon receipt of invoice including reimbursable expenses such as graphic reproduction, travel, mileage and delivery services.Our hourly rates for the work are as follows:Fred Fisher - $400 per hourJoe Coriaty - $295 per hourProject Manager/Architect - $180 per hourProject Designer - $160 per hourProject Assistant - $140 per hour 429
Department: Public Works
Prepared By: Niles Boyer
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: 17
SUBJECT:

A CONSTRUCTION CONTRACT WITH KRESSA, LLC. FOR THE HOMER BRIGGS PARK

CONCESSION RENOVATION PROJECT

CITY OF ONTARIO
Agenda Report
April 15, 2025
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following actions:

A
.

Authorize the City Manager, or his designee, to execute a Construction Contract with Kressa, LLC, of West Covina, California, for the Homer Briggs Park Concession Renovation Project in the amount of $174,150 plus a 10% contingency of $17,415 to address any unforeseen issues that may arise during the construction for a total not-to-exceed contract amount of $191,565; and
B
.

Authorize the City Manager, or his designee, to execute all documents required for the completion of the project which may include, but is not limited to agreements, assessments, easements, reduction of retention accounts, contract amendments within the authorization limits, and filing a notice of completion at the conclusion of all construction related activities.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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

The proposed Construction Contract with Kressa, LLC is in the amount of $174,150 plus a 10% contingency of $17,415 for a total not-to-exceed contract amount of $191,565. The Fiscal Year 2024-25 Adopted Budget includes appropriations in the Capital Projects-Measure Q Fund for the Homer Briggs Park Concession Renovation Project.

BACKGROUND & ANALYSIS:

The kitchen area of the Homer Briggs Park Concession Stand is in poor condition and in need of additional dry storage areas on the ﬁrst ﬂoor and additional oﬃce storage on the second ﬂoor of the building. The renovation project will provide improved concession facilities and an improved oﬃce area for the users of the ballﬁeld area, including the Ontario Western Little League.
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In February 2025, the City solicited bids for Invitation No. 1882 Homer Briggs Park Concession Renovation Project. Seventeen bids were received that met the bid criteria and standards necessary to perform this work. The bid results are listed below:

Vendor Name
Location
Bid Amount
Kressa, LLC
West Covina, CA
$174,150
Metro Builders & Engineers Group, Ltd.

Newport Beach, CA
$192,960
Global Builders, Inc.

Laguna Hills, CA
$217,888
The Stone Collector
Anaheim, CA
$218,000
ENL Building Service, Inc.

Fullerton, CA
$249,700
R Dependable Const, Inc.

San Bernardino, CA
$269,900
IPI Construction
Panorama City, CA
$278,855
KBCI
Rowland Heights, CA
$289,333
RS Construction & Development
Ontario, CA
$312,158
Bridgerock Construction, Inc.

La Puente, CA
$316,150
Reed Family Enterprises, Inc.

Temecula, CA
$317,000
Valmor Construction Services
Menifee, CA
$354,000
Trust General Contracting
Rancho Cucamonga, CA
$358,750
Edra Construction Corporation
Glendora, CA
$388,000
JRH Construction Company, Inc.

Irvine, CA
$404,229
AVA Builders, Inc.

North Hollywood, CA
$450,000
SPEC Construction Co., Inc.

Ontario, CA
$478,000

Kressa LLC, of West Covina, California, submitted the lowest responsible bid at $174,150. Based on their credentials, pricing, and favorable reference checks, Staﬀ recommends awarding a Construction Contract to Kressa LLC for the Homer Briggs Park Concession Renovation Project. 431
SECTION 00500 – CONTRACT FOR CONSTRUCTION
This Contract for Construction (“Contract”), No. is made and entered as of , by and between City of Ontario, with its principal place of business at 303 East “B” Street, Ontario, CA 91764, sometimes hereinafter called the “City” and Kressa LLC., 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 servic es, 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:

Homer Briggs Park Concession Renovation Project
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 c ommenced on the date stated in the City’s Notice to Proceed. The Contractor s hall complete all Work required by the Contract Documents within 90 (ninety) 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 One Hundred Seventy-Four Thousand One Hundred Fifty Dollars ($174,150). 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.

PAUL S. LEON
MAYOR
AL
AN D. WAPNER

MAYOR PRO TEM
JI
M W. BOWMAN

DEBRA PORADA

DAISY MACIAS

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK
J
AMES R. MILHISER

CITY TREASURER
S

COTT OCHOA

CITY MANAGER
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Homer Briggs Park Concession Renovation Project -2- SECTION 00500 – CONTRACT FOR

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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 $50.00 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.

Consistent with Public Contract Code Section 7102, Contractor will be compensated for damages incurred due to delays for which the City is responsible. The parties agree that determining Contractor’s exact delay damages is and will continue to be impracticable and extremely difficult.

As such, for each calendar day in excess of the Contract Time, the City shall pay to the Contractor $50.00 per day as Reverse Liquidated Damages and not as a penalty or forfeiture. Such amount shall constitute the only payment allowed for any City caused delays and shall necessarily include all overhead, all profits, all administrative costs, all bond costs, all labor, materials, equipment and rental costs and any other costs, expenses and fees incurred or sustained as a result of such delays. Notice of requests for delay damages and additional days shall be provided to the City within five (5) Days from the discovery of the circumstances giving rise to any delay or three (3) Days from the discovery of any latent or subsurface conditions giving rise to a delay.

ARTICLE 5. COMPONENT PARTS OF THE CONTRACT.

The “Contract Documents” include the following :

Notice Inviting Bids
Instructions to Bidders
Bid Forms
Bid Acknowledgement
Bid Schedule
Bid Guarantee
Designation of Subcontractors
Information Required of Bidders
Non-Collusion Declaration Form
Iran Contracting Act Certification
Fleet Compliance Certification
Public Works Contractor DIR Registration Certification
Performance Bond
Payment (Labor and Materials) Bond
Contract for Construction
General Conditions
Special Conditions
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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
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, 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. 434
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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
KRESSA LLC.

By:

Its:

Printed Name:

By:

Its:

Printed Name:

Contractor’s License Number and
Classification

DIR Registration Number

END OF CONTRACT
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Homer Briggs Park Concession Renovation Project -6- SECTION 00500 – CONTRACT FOR

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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
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SECTION 00610 – BOND FORMS

Performance Bond
KNOW ALL PERSONS BY THESE PRESENTS:

THAT WHEREAS, the City of Ontario, with its principal place of business at 303 East “B” Street, Ontario, CA 91764, (hereinafter referred to as the “City”) has awarded to , (hereinafter referred to as the “Contractor”) an agreement for Contract No. , (hereinafter referred to as the “Project”).

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

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

THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one (1) year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officials, officers, employees, and authorized volunteers, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.

As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees including reasonable attorney’s fees, incurred by the City in enforcing such obligation.

As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by the City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship.

The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under 438
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the Contract, law or equity, including, but not limited to, California Code of Civil Procedure Section 337.15.

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

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

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

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project.
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Homer Briggs Park Concession Renovation Project -9- SECTION 00610 – BOND FORMS 46700.00920\42649889.1

IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of , 20 .
(Corporate Seal)
Contractor/ Principal
By

Title

(Corporate Seal)

Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is per thousand. The total amount of premium charges is $ .
(The above must be filled in by corporate attorney.)

THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)

(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
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STATE OF CALIFORNIA

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal. 441
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STATE OF CALIFORNIA

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of Attorney to local representatives of the bonding company must also be attached.

END OF PERFORMANCE BOND
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Payment Bond (Labor and Materials).

KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Ontario , with its principal place of business at 303 East “B” Street, Ontario, CA 91764 (hereinafter designated as the “City”), by action taken or a resolution passed , 20 , has awarded to hereinafter
designated as the “Principal,” a contract for the work described as follows: Contract No. (the “Project”); and
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated , (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.

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

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

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

It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating 443
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to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or the City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of his claim.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of Contract, including but not limited to, the provisions of Sections 2819 and 2845 of the California Civil Code.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of , 20 .
(Corporate Seal)
Contractor/ Principal
By

Title

(Corporate Seal)

Surety
By
Attorney-in-Fact
(Attach Attorney-in-Fact Certificate) Title
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STATE OF CALIFORNIA

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for Contractor/Principal. 445
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STATE OF CALIFORNIA

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

WITNESS my hand and official seal.

Signature of Notary Public

Signer is representing:

Name Of Person(s) Or Entity(ies)

Signer(s) Other Than Named Above
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-of-Attorney to local representatives of the bonding company must also be attached.

END OF PAYMENT BOND
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SECTION 00700 – GENERAL CONDITIONS

ARTICLE 1 -TERMS; DEFINITIONS

1.1 Defined Terms
A. Whenever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.

1. Act of God – An earthquake of magnitude of 3.5 or higher on the Richter scale or a tidal wave.

2. Addenda -- Written or graphic instruments issued prior to the submission of Bids which clarify, correct, or change the Contract Documents.

3. Additional Work -- New or unforeseen work will be classified as “Additional Work” when the Engineer determines that it is not covered by the Contract.

4. Applicable Laws -- The laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction (including utilities), to the extent they apply to the Work.

5. Bid -- The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices and other terms for the Work to be performed.

6. Bid Guarantee -- The Bid Bond, cashier’s check, or certified check to be made by the Bidder, which is to accompany the Bid as a guaranty of good faith to enter into a written contract.

7. Bidder -- The individual or entity who submits a Bid directly to the City.

8. Change Order (“CO”) -- A document that authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Contract, in accordance with the Contract Documents and in the form contained in the Contract Documents.

9. Change Order Request (“COR”) -- A request made by the Contractor for an adjustment in the Contract Price and/or Contract Times as the result of a Contractor-claimed change to the Work.

10. City’s Representative – The City of Ontario, and acting through properly authorized agents, such as the Engineer or such other agents acting within the scope of the particular duties entrusted to them. Also sometimes referred to as the “City’s Representative” or “Representative” in the Contract Documents. The terms the City and Owner may be used interchangeably
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11. Claim -- A demand or assertion by the City or Contractor seeking an adjustment of Contract Price or Contract Times, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim.

12. Contract -- The entire integrated written agreement between the City and Contractor concerning the Work. “Contract” may be used interchangeably with “Agreement” in the Contract Documents. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral, and includes all Contract Documents.

13. Contract Documents -- The documents listed in Section 00 52 13, Article 5 of the Contract for Construction. Some documents provided by the City to the Bidders and Contractor, including but not limited to reports and drawings of subsurface and physical conditions are not Contract Documents.

14. Contract Price -- Amount to be paid by the City to the Contractor as full compensation for the performance of the Contract and completion of the Work, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs.

15. Contract Time -- The number of days or the dates stated in the Contract Documents to: achieve defined milestones, if any; and to complete the Work so that it is ready for final payment.

16. Contractor -- The individual or entity with which the City has contracted for performance of the Work.

1. Contractor’s Designated On -Site Representative -- The Contractor’s Designated On-Site Representative will be identified by the Contractor and shall not be changed without prior written consent of the City.

2. Critical Supply Shortage -- An unusual shortage in materials that is (a) supported by documented proof that Contractor made every effort to obtain such materials from all available sources; (b) such shortage is due to the fact that such materials are not physically available from single or multiple sources or could have been obtained only at exorbitant prices entirely inconsistent with current and standard rates taking into account the quantities involved and the usual industry practices in obtaining such quantities; and (c) such shortages and the difficulties in obtaining alternate sources of materials could not have been known or anticipated by Contractor at the time it submitted its bid or entered the Contract. Market fluctuations in prices of materials, whether or not resulting from a Force Majeure Event, does not constitute a Critical Supply Shortage.

3. Day -- A calendar day of 24 hours measured from midnight to the next midnight.

4. Defective Work -- Work that is unsatisfactory, faulty, or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of any inspection, reference standard, test, or approval referenced in the Contract Documents.
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5. Demobilization -- The complete dismantling and removal by the Contractor of all of the Contractor’s temporary facilities, equipment, and personnel at the Site.

6. Drawings -- That part of the Contract Documents prepared by of the Engineer of Record which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor Submittals are not Drawings as so defined.

7. Effective Date of the Contract -- The date indicated in the Contract on which it becomes effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver.

8. Engineer -- Whenever not qualified, shall mean the City Engineer or the Engineer authorized to act for and in behalf of the City, acting either directly or through properly authorized agents, such agents acting severally within the scope of the particular duties entrusted to them.

9. Force Majeure Event -- 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 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; (5) strikes and other organized labor action occurring at the Site and the effects thereof on the Work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its Subcontractors, of every Tier, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (6) a Critical Supply Shortage. 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.

10. Hazardous Waste -- The term “Hazardous Waste” shall have the meaning provided in Section 104 of the Solid Waste Disposal Act (42 U.S.C. § 6903) as amended from time to time, or any substance or material identified as hazardous under any state or federal statute governing handling, disposal and/or cleanup of any such substance or material, whichever is more restrictive.

11. Holiday – Holidays occur on:

New Year’s Day - January 1
President’s Day – Third Monday in February
Memorial Day - Last Monday in May
Independence Day - July 4
Labor Day - First Monday in September
Veteran’s Day - November 11
Thanksgiving Day - Fourth Thursday in November
Friday after Thanksgiving
Christmas Eve – December 24
Christmas Day - December 25
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Day After Christmas – December 26
New Year’s Eve – December 31
If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both Holidays.

12. Notice of Award -- The written notice by the City to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, the City will sign and deliver the Contract.

13. Notice of Completion -- The form which may be executed by the City constituting final acceptance of the Project.

14. Notice to Proceed -- A written notice given by the City to Contractor fixing the date on which the Contractor may proceed with the Work and when Contract Times will commence to run.

15. Project -- The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part.

16. Record Drawings – The record set of as-builts prepared by the Contractor during the Work in accordance with the requirements of the General Conditions.

17. Recyclable Waste Materials -- Materials removed from the Site which are required to be diverted to a recycling center rather than an area landfill. Recyclable Waste Materials include, but are not limited to, asphalt, concrete, brick, concrete block, and rock.

18. Sample -- A physical example furnished by the Contractor to illustrate materials, equipment or workmanship; to establish standards by which the Work will be judged.

19. Schedule of Submittals -- A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to facilitate scheduled performance of related construction activities.

20. Shop Drawings -- All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work.

21. Site -- Lands or areas indicated in the Contract Documents as being furnished by the City upon which the Work is to be performed, including rights -of-way and easements for access thereto, and such other lands furnished by the City which are designated for the use of Contractor.

22. Specifications -- That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto.
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23. Stop Payment Notice -- A written notice as defined in Civil Code section 8044.

24. Subcontractor -- An individual or entity other than a Contractor having a contract with any other entity than the City for performance of any portion of the Work at the Site.

25. Submittal -- Written and graphic information and physical samples prepared and supplied by the Contractor demonstrating various portions of the Work.

26. Successful Bidder -- The responsible Bidder submitting a responsive Bid to whom the City makes an award.

27. Supplier -- A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment used in the performance of the Work or to be incorporated in the Work.

28. Underground Facilities -- All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems.

29. Unit Price Work -- Work to be paid for on the basis of unit prices as provided by the Contractor in its Bid or as adjusted in accordance with the Contract Documents.

30. Warranty -- A guarantee provided to the City by the Contractor that the Work will remain free of defects and suitable for its intended use for the period required by the Contract Documents or the longest period permitted by the law of this state, whichever is longer.

31. Work -- The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents.

1.2 Terminology.

A. The words and terms below are not defined but, when used in the Contract Documents, have the indicated meaning.

1. The word “furnish,” when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition.
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2. The word “install,” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use.

3. The words “perform” or “provide,” when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use.

4. Regardless of whether “furnish,” “install,” “perform,” or “provide” is used in connection with services, materials, or equipment, an obligation of Contractor is implied.

B. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning.

ARTICLE 2 -PRELIMINARY MATTERS

2.1 Delivery of Contract Documents
A. Within ten (10) Days after receipt of the Notice of Award and before the City will execute the Contract, the Contractor shall furnish and file with the City a signed Contract and the necessary Performance Bond, Payment Bond, and Certificates of Insurance and Endorsements, as well as any other documents specified in the Contract Documents.

2.2 Bonds
A. Contractor shall submit the bonds on the forms provided with the Contract Documents, duly executed by a responsible corporate surety admitted to transact surety business in the State of California, as defined in Code of Civil Procedure section 995.120, and listed in the United States Department of the Treasury circular entitled "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies," authorized to do business in the State of California and acceptable to the City conditioned upon the faithful performance by the Contractor of all requirements of the Contract Documents. Each of the bonds shall be in a sum no less than one hundred percent (100%) of the Contract Price. Bonds shall be delivered to the City within ten (10) Days after receipt of the Notice of Award and before execution of the Contract by the City.

2.3 Evidence of Insurance
A. Prior to commencing any Work but no later than ten (10) Days after receipt of the Notice of Award, the Contractor shall submit or cause to be submitted any and all Certificates of Insurance and Endorsements, showing that the Contractor has the required insurance, to the attention of the City. Such insurance is to be provided at the sole cost and expense of the Contractor. No Work shall be performed until all of the required insurance has been received and approved.
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2.4 Execution of the Contract
A. Upon receipt of the required Contract Documents, the City will execute the Contract, establishing the Effective Date of the Contract.

2.5 Contractor’s Failure to Perform
A. Should Contractor fail to comply with timelines provided above, the City shall retain the right to enforce and collect on the Contractor’s Bid Guarantee, rescind award to the Contractor and award the Contract to the next lowest responsive, responsible bidder as determined by the City. If the City elects to accept bonds and insurance submitted late, the Contract Times will begin to run as of the date stated in the Notice to Proceed. However, the number of days beyond the original ten (10) Days it took to receive the properly executed Contract and related items may be deducted from the Contract Times.

2.6 Commencement of Contract Times; Notice to Proceed
A. The City will not issue a Notice to Proceed until after the Effective Date of the Contract.

Work shall commence within ten (10) Days of the date stated in the Notice to Proceed.

The Contract Times begin to run on the date specified in the Notice to Proceed. No Work shall be done at the Site prior to the issuance of the Notice to Proceed.

2.7 Copies of Documents
A. Contractor will be furnished, free of charge, five (5) copies of the Contract Documents. Additional copies may be obtained at cost of reproduction. Contractor shall maintain a clean, undamaged set of Contract Documents, including Submittals, at the Project site.

2.8 Substitution Requests, Schedule of Submittals, and Schedule A. Substitution Requests. Within thirty -five (35) days of Contract award (unless otherwise specified in the Contract Documents), Contractor shall provide all substitution requests as further described in the General Conditions.

B. Schedule of Submittals. Within five (5) Days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), Contractor shall submit to the City a Schedule of Submittals that conforms with the requirements of Section 00 72 00, Article 5.21.

C. Schedule. Within ten (10) days after the issuance of the Notice of Proceed (unless otherwise specified in the Contract Documents), the Contractor shall submit a construction schedule that conforms with the requirements of Section 00 72 00, Article 8.2.

2.9 Preconstruction Conference; Designation of Authorized Representatives.

A. Before any Work at the Site is started, a conference attended by the City, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules 453
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referred to herein, procedures for handling Submittals and Shop Drawings, processing applications for payment, and maintaining required records.

B. At this conference the City and Contractor each shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party.

2.10 Subcontractor Mobilization Meeting.

A. Prior to the start of each major Subcontractor’s Site Work, the Contractor, the involved Subcontractor, and Engineer shall attend a pre-start meeting to discuss the schedule, coordination, procedures, and other administrative issues.

2.11 Authority of Council; Engineer
A. The City Council has the final authority in all matters affecting the Work. Within the scope of the Contract, the Engineer has the authority to enforce compliance with the Contract Documents. The Contractor shall promptly comply with instructions from the Engineer.

B. The decision of the Engineer is final and binding on all questions relating to:

1. quantities;

2. acceptability of material, equipment, or work;

3. execution, progress or sequence of work;

4. interpretation of the Plans, Specifications, or other Contract Documents; and

5. Any other areas specifically identified in the Contract Documents or under the law.

C. Compliance with instructions from the Engineer shall be a condition precedent to any payment under the Contract, unless otherwise ordered by the City Council.

2.12 Mobilization
A. When a Bid item is included in the Bid Schedule for mobilization, the costs of Work in advance of construction operations and not directly attributable to any specific bid item will be included in the progress estimate. When no bid item is provided for mobilization payment for such costs will be deemed to be included in the other items of the Work.

B. Payment for mobilization based on the lump sum provided in the Bid Schedule, shall constitute full compensation for all such Work. No payment for mobilization will be made until all of the listed items have been completed to the satisfaction of the Engineer. The scope of the Work included under mobilization shall include, but shall not be limited to, the following principal items:
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1. Obtaining and paying for all bonds, insurance, and permits.

2. Moving on to the Project Site of all Contractor’s plant and equipment required for the first month’s operations.

3. Installing temporary construction power, wiring, and lighting facilities, as applicable.

4. Establishing fire protection system, as applicable.

5. Developing and installing a construction water supply, as applicable.

6. Providing and maintaining the field office trailers for the Contractor, if necessary, and the Engineer (if specified), complete, with all specified furnishings and utility services.

7. Providing on-site sanitary facilities and potable water facilities as specified per Cal- OSHA and these Contract Documents.

8. Furnishing, installing, and maintaining all storage buildings or sheds required for temporary storage of products, equipment, or materials that have not yet been installed in the Work. All such storage shall meet manufacturer’s specified storage requirements, and the specific provisions of the specifications, including temperature and humidity control, if recommended by the manufacturer, and for all security.

9. Arranging for and erection of Contractor’s work and storage yard.

10. Posting all OSHA required notices and establishment of safety programs per Cal- OSHA.

11. Full-time presence of Contractor’s superintendent at the job Site as required herein.

12. Submittal of construction schedule as required by the Contract Documents.

ARTICLE 3 -CONTRACT DOCUMENTS; INTENT

3.1 Examination of Drawings, Specifications, and Site of Work A. Examination of Contract Documents; Site . Before commencing any portion of the Work, Contractor shall again carefully examine all applicable Contract Documents, the Project Site, and other information given to Contractor as to materials and methods of construction and other Project requirements. Contractor shall immediately notify the Engineer of any potential error, inconsistency, ambiguity, conflict, or lack of detail or explanation. If Contractor performs, permits, or causes the performance of any Work which is in error, inconsistent or ambiguous, or not sufficiently detailed or explained, Contractor shall bear any and all resulting costs, including, without limitation, the cost of correction. In no case shall the Contractor or any Subcontractor proceed with Work if uncertain as to the applicable requirements.
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B. Additional Instructions . After notification of any error, inconsistency, ambiguity, conflict, or lack of detail or explanation, the Engineer will provide any required additional instructions, by means of drawings or other written direction, necessary for proper execution of Work.

C. Quality of Parts, Construction and Finish. All parts of the Work shall be of the best quality of their respective kinds and the Contractor must use all diligence to inform itself fully as to the required construction and finish.

D. Contractor’s Variation from Contract Document Requirements. If it is found that the Contractor has varied from the requirements of the Contract Documents including the requirement to comply with all Applicable Laws, the Engineer may at any time, before or after completion of the Work, order the improper Work removed, remade or replaced by the Contractor at the Contractor’s expense.

3.2 Intent of Contract Documents
A. The Contract Documents are complementary; what is required by any one will be binding as if required by all. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to the City.

B. The Contractor shall furnish, unless otherwise provided in the Contract Documents, all materials, implements, machinery, equipment, tools, supplies and labor necessary to the prosecution and completion of the Project.

C. Clarifications and interpretations of the Contract Documents shall be issued by the Engineer as provided in these General Conditions.

D. If utilities to equipment/fixtures are not shown but are necessary to operate the equipment/fixtures, the utilities service installation is considered to be part of the Work. The implied Work will conform to the appropriate sections of the Contract Documents.

E. Organization of the Contract Documents into divisions, sections, and articles, and arrangement of drawings shall not control the Contractor in dividing Work among Subcontractors or in establishing the extent of Work to be performed by any trade.

3.3 Reference Standards.

A. Standards, Specifications, Codes, Laws, and Regulations.

1. Reference to federal specifications, federal standards, other standards, specifications, manuals, or codes of any technical society, organization, or association, or to Applicable Laws, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Applicable Laws in effect at the time of opening of Bids (or on the Effective Date of the 456
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Contract if there were no Bids), except as may be otherwise specifically stated in the Contract Documents.

2. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of the City, Contractor, or any of their Subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to the City, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents.

3.4 Reporting and Resolving Discrepancies; Order of Precedence.

A. Reporting Discrepancies.

1. The Contract Documents are intended to be fully cooperative and complementary.

Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Contractor shall promptly report in writing to the City any conflict, error, ambiguity, or discrepancy which Contractor discovers, should have discovered, or has actual knowledge of, and shall obtain a written interpretation or clarification from the City before proceeding with any Work affected thereby. If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (i) any Applicable Law, (ii) any standard, specification, manual, or code, or (iii) any instruction of any Supplier, then Contractor shall promptly submit a written Request for Information (RFI) to the City.

Contractor shall not proceed with the Work affected thereby (except in an emergency) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in the Contract Documents, and any Work performed by Contractor before receipt of an amendment or supplement shall be at Contractor’s own risk.

B. Order of Precedence.

1. In case of conflicts between the Contract Documents, the order of precedence shall be as follows:
a. Permits from other agencies as may be required by law b. Change Orders, most recent first
c. Contract
d. Addenda, most recent first
e. Special Conditions
f. Specifications
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g. Construction Plans and Drawings(Contract Drawings)
h. General Conditions
i. Instructions to Bidders
j. Notice Inviting Bids
k. Contractor’s Bid (Bid Forms)
l. Standard Specifications for Public Works Construction “Greenbook” latest edition (Sections 1-9 Excluded)
m. Applicable Local Agency Standards and Specifications n. Standard Drawings
o. Reference Documents

2. With reference to the Drawings the order of precedence shall be as follows:
a. Figures govern over scaled dimensions
b. Detail drawings govern over general drawings
c. Addenda/Change Order drawings govern over Drawings
d. Contract Drawings govern over Standard Drawings
e. Contract Drawings govern over Shop Drawings

3. Notwithstanding the orders of precedence established above, in the event of conflicts, the higher standard, higher quality and most expensive shall always apply.

3.5 Amending and Supplementing Contract Documents.

A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof only by Change Order or written amendment to the Contract duly executed by the parties.

B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized at no cost to the City, by one or more of the following ways:

1. The City’s review of a Submittal, Shop Drawing, Sample or substitution request without exception (subject to the provisions of the Contract Documents); or

2. The City’s issuance of a response to an RFI.

C. However, no review or RFI response will reduce or modify the Contractor’s obligation to fully satisfy and comply with the requirements of the Contract Documents. 458
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3.6 Reuse of Documents.

A. Contractor and any Subcontractor or Supplier shall not:

1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer of Record or its consultants, including electronic media editions; or

2. reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of the City and Engineer of Record and specific written verification or adaptation by Engineer of Record.

B. The prohibitions of this Article will survive final payment, or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes.

ARTICLE 4 -INDEMNIFICATION; INSURANCE

4.1 Indemnification
A. To the fullest extent permitted by law, Contractor shall immediately defend (with counsel of the City’s choosing), indemnify and hold harmless the City, its officials, officers, agents, employees, and representatives, and each of them from and against:

1. Any and all claims, demands, causes of action, costs, expenses, injuries, losses or liabilities, in law or in equity, of every kind or nature whatsoever, but not limited to, injury to or death, including wrongful death, of any person, and damages to or destruction of property of any person, arising out of, related to, or in any manner directly or indirectly connected with the Work or this Contract, including claims made by subcontractors for nonpayment, including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses, however caused, regardless of whether the allegations are false, fraudulent, or groundless, and regardless of any negligence of the City or its officers, employees, or authorized volunteers (including passive negligence), except the sole negligence or willful misconduct or active negligence of the City or its officials, officers, employees, or authorized volunteers.

2. Contractor’s defense and indemnity obligation herein includes, but is not limited to damages, fines, penalties, attorney’s fees and costs arising from claims under the Americans with Disabilities Act (ADA) or other federal or state disability access or discrimination laws arising from Contractor’s Work during the course of construction of the improvements or after the Work is complete, as the result of defects or negligence in Contractor’s construction of the improvements.

3. Any and all actions, proceedings, damages, costs, expenses, fines, penalties or liabilities, in law or equity, of every kind or nature whatsoever, arising out of, resulting from, or on account of the violation of any governmental law or regulation, compliance with which is the responsibility of Contractor; 459
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4. Any and all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense which any of them may incur with respect to the failure, neglect, or refusal of Contractor to faithfully perform the Work and all of Contractor’s obligations under Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees, incurred by the indemnified parties in any lawsuit to which they are a party.

B. Contractor shall immediately defend, at Contractor’s own cost, expense and risk, with the counsel of the City choosing, 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, agents, employees and representatives. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents, employees and representatives, in any such suit, action or other legal proceeding. Contractor shall reimburse the City, its officials, officers, agents, employees and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The only limitations on this provision shall be those imposed by Civil Code section 2782.

C. The provisions of this Article shall survive the termination of this Contract howsoever caused, and no payment, partial payment, or acceptance of occupancy in whole or part of the Work shall waive or release any of the provisions of this Article.

4.2 Insurance
The Contractor shall obtain, and at all times during performance of the Work of Contract, maintain all of the insurance described in this Article. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required hereunder. Contractor shall not allow any Subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Article. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause. Contractor shall furnish the City with original certificates of insurance and endorsements effective coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms acceptable to the City. All certificates and endorsements must be received and approved by the City before Work commences.

A. Additional Insureds; Waiver of Subrogation. The City, its officials, officers, employees, agents and authorized volunteers shall be named as Additional Insureds on Contractor’s All Risk policy and on Contractor’s and its subcontractors’ policies of Commercial General Liability and Automobile Liability insurance using, for Contractor’s policy/ies of Commercial General Liability insurance, ISO CG forms 20 10 and 20 37 (or endorsements providing the exact same coverage, including completed operations), and, for subcontractors’ policies of Commercial General Liability insurance, ISO CG form 20 38 (or endorsements providing the exact same coverage). Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, all available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as Additional Insureds hereunder.

All insurance coverage maintained or procured
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pursuant to this Contract shall be endorsed to waive subrogation against the City, its officers, officials , agents, employees or volunteers or shall specifically allow Contractor - or others providing insurance evidence in compliance with these specifications - to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to the City prior to commencement of work.

B. Workers’ Compensation Insurance . The Contractor shall provide workers’ compensation insurance for all of the employees engaged in Work under this Contract, on or at the Site, and, in case of any sublet Work, the Contractor shall require the subcontractor similarly to provide workers’ compensation insurance for all the latter’s employees as prescribed by State law. Any class of employee or employees not covered by a subcontractor’s insurance shall be covered by the Contractor’s insurance. In case any class of employees engaged in work under this Contract, on or at the Site, is not protected under the Workers’ Compensation Statutes, the Contractor shall provide or shall cause a subcontractor to provide, adequate insurance coverage for the protection of such employees not otherwise protected. The Contractor is required to secure payment of compensation to his employees in accordance with the provisions of section 3700 of the Labor Code.

The Contractor shall file with the City certificates of his insurance protecting workers.

Company or companies providing insurance coverage shall be acceptable to the City, if in the form and coverage as set forth in the Contract Documents.

C. Employer’s Liability Insurance. Contractor shall provide Employer’s Liability Insurance, including Occupational Disease, in the amount of at least one million dollars ($1,000,000.00) per person per accident. Contractor shall provide the City with a certificate of Employer’s Liability Insurance. Such insurance shall comply with the provisions of the Contract Documents. The policy shall be endorsed, if applicable, to provide a Borrowed Servant/Alternate Employer Endorsement and contain a Waiver of Subrogation in favor of the City.

D. Commercial General Liability Insurance . Contractor shall provide “occurrence” form Commercial General Liability insurance coverage at least as broad as the most current ISO CGL Form 00 01, including but not limited to, premises liability, contractual liability, products/completed operations, personal and advertising injury which may arise from or out of Contractor’s operations, use, and management of the Site, or the performance of its obligations hereunder. The policy shall not contain any exclusion contrary to this Contract including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 39); or (2) cross-liability for claims or suits against one insured against another. Policy limits shall not be less than $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Defense costs shall be paid in addition to the limits.

1. Such policy shall comply with all the requirements of this Article. The limits set forth herein shall apply separately to each insured against whom claims are made or 461
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suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit Contractor’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 Contract Documents or law.

2. All general liability policies provided pursuant to the provisions of this Article shall comply with the provisions of the Contract Documents.

3. All general liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury, owned and non- owned equipment, blanket contractual liability, completed operations liability, explosion, collapse, under-ground excavation, removal of lateral support, and other covered loss, however occasioned, occurring during the policy term, and shall specifically insure the performance by Contractor of that part of the indemnification contained in these General Conditions relating to liability for injury to or death of persons and damage to property.

4. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit must remain available at all times; if over 50% of any aggregate limit has been paid or reserved, the City may require additional coverage to be purchased by Contractor to restore the required limits. Contractor may combine primary, umbrella, and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the additional insured endorsement described in the Contract Documents.

5. All policies of general liability insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.

E. Automobile Liability Insurance. Contractor shall provide Automobile Liability Insurance at least as broad as ISO CA 00 01 (Any Auto) in the amount of, at least, two million dollars ($2,000,000) per accident for bodily injury and property damage.

Such insurance shall provide coverage with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible, in a form and with insurance companies acceptable to the City. All policies of automobile insurance shall permit and Contractor does hereby waive any right of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss.

F. Builder’s Risk [“All Risk”]

1. It is the Contractor’s responsibility to maintain or cause to be maintained Builder’s Risk [“All Risk”] extended coverage insurance on all work, material, equipment, appliances, tools, and structures that are or will become part of the Work and subject to loss or damage by fire, and vandalism and malicious mischief, in an amount to cover 100% of the replacement cost. The City accepts no responsibility for the Work until the Work is formally accepted by the City. The Contractor shall 462
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provide a certificate evidencing this coverage before commencing performance of the Work.

2. The named insureds shall be Contractor, all Subcontractors of any tier (excluding those solely responsible for design work), suppliers, and the City, its elected officials, officers, employees, agents and authorized volunteers, as their interests may appear. Contractor shall not be required to maintain property insurance for any portion of the Work following acceptance by the City.

3. Policy shall be provided for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub- limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site. Such insurance shall be on a form acceptable to the City to ensure adequacy and sublimit.

4. In addition, the policy shall meet the following requirements:
a. Insurance policies shall be so conditioned as to cover the performance of any extra work performed under the Contract.
b. Coverage shall include all materials stored on site and in transit. c. Coverage shall include Contractor’s tools and equipment. d. Insurance shall include boiler, machinery and material hoist coverage.

G. Contractor’s Pollution Liability Coverage. Contractor shall provide pollution liability insurance in an amount not less than $1,000,000 per occurrence and $2,000,000 aggregate.

H. Contractor shall require all tiers of Subcontractors working under this Contract to provide the insurance required under this Article unless otherwise agreed to in writing by the City. Contractor shall make certain that any and all Subcontractors hired by Contractor are insured in accordance with this Contract. If any Subcontractor’s coverage does not comply with the foregoing provisions, Contractor shall indemnify and hold the City harmless from any damage, loss, cost, or expense, including attorneys’ fees, incurred by the City as a result thereof.

I. Notwithstanding the minimum limits set forth in this Contract for any type of insurance coverage, if Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 463
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J. Form and Proof of Carriage of Insurance

1. Any insurance carrier providing insurance coverage required by the Contract Documents shall be admitted to and authorized to do business in the State of California unless waived, in writing, by the City’s Risk Manager. Carrier(s) shall have an A.M. Best rating of not less than an A:VII. Insurance deductibles or self- insured retentions must be declared by the Contractor. At the election of the City the Contractor shall either 1) reduce or eliminate such deductibles or self -insured retentions, or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.

2. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or cancelled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) 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, agents, employees, and volunteers.

3. The Certificates(s) and policies of insurance shall contain or shall be endorsed to contain the covenant of the insurance carrier(s) that it shall provide no less than thirty (30) days written notice be given to the City prior to any material modification or cancellation of such insurance. In the event of a material modification or cancellation of coverage, the City may terminate the Contract or stop the Work in accordance with the Contract Documents, unless the City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverage’s set forth herein and the insurance required herein is in full force and effect. Contractor shall not take possession, or use the Site, or commence operations under this Contract until the City has been furnished original Certificate(s) of Insurance and certified original copies of endorsements or policies of insurance including all endorsements and any and all other attachments as required in this Article. The original endorsements for each policy and the Certificate of Insurance shall be signed by an individual authorized by the insurance carrier to do so on its behalf.

4. The Certificate(s) of Insurance, policies and endorsements shall so covenant and shall be construed as primary, and the City’s insurance and/or deductibles and/or self-insured retentions or self -insured programs shall not be construed as contributory.

5. The City reserves the right to adjust the monetary limits and types of insurance coverages during the term of this Contract including any extension thereof if, in the City’s reasonable judgment, the amount or type of insurance carried by the Contractor becomes inadequate.
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6. Contractor shall report to the City, in addition to the Contractor’s insurer, any and all insurance claims submitted by the Contractor in connection with the Work under this Contract.

7. Products/completed operations coverage shall extend a minimum of three years after the project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The City, its officers, officials, agents employees, and volunteers shall be included as insureds under the policy.

ARTICLE 5 -CONTRACTOR RESPONSIBILITIES; REGULATORY REQUIREMENTS

5.1 Applicable Laws
A. Contractor shall give all notices required by and shall comply with all Applicable Laws applicable to the performance of the Work. Except where otherwise expressly required by Applicable Laws, neither the City nor the City’s Representative shall be responsible for monitoring Contractor’s compliance with any Applicable Laws. If Contractor performs any Work knowing or having reason to know that it is contrary to Applicable Laws, Contractor shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work.

5.2 Permits and Licenses
A. Permits and licenses necessary for prosecution of the Work shall be secured and paid for by Contractor, including, but not limited to, excavation permit, for plumbing, mechanical and electrical work and for operations in or over public streets or right of way under jurisdiction of public agencies other than the City, unless otherwise specified in the Contract Documents.

B. The Contractor shall arrange and pay for all off-site inspection of the Work related to permits and licenses, including certification, required by the specifications, drawings, or by governing authorities, except for such off -site inspections delineated as the City’s responsibility pursuant to the Contract Documents.

C. Before acceptance of the Work, the Contractor shall submit all licenses, permits, certificates of inspection and required approvals to the City.

5.3 Taxes
A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid in accordance with the Applicable Laws of the place of the Project which are applicable during the performance of the Work. In accordance with Revenue and Taxation Code section 107.6, the Contract Documents may create a possessory 465
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interest subject to personal property taxation for which Contractor will be responsible.

5.4 Traffic Control
A. Traffic control plans, if required, shall be prepared at Contractor’s expense. Traffic control shall be performed at Contractor’s expense in accordance with the requirements of the City and/or the local agency with jurisdiction. Costs for traffic control plans, implementation of traffic control, or traffic signal services required by the City shall be included in the Contractor’s Bid.

B. All warning signs and safety devices used by the Contractor to perform the Work shall conform to the requirements contained in the State of California, Department of Transportation’s current edition of “Manual of Traffic Controls for Construction and Maintenance Work Zones” or to the requirements of the local agency. The Contractor shall also be responsible for all traffic control required by the agency having jurisdiction over the Project on the intersecting streets. Contractor must submit a traffic control plan to the agency having jurisdiction over the Project for approval prior to starting Work.

C. The Contractor’s representative on the site responsible for traffic control shall produce evidence that he/she has completed training acceptable to the California Department of Transportation for safety through construction zones. All of the streets in which the Work will occur shall remain open to traffic and one lane of traffic maintained at all times unless otherwise directed by the agency of jurisdiction.

Businesses and residences adjacent to the Work shall be notified forty -eight (48) hours in advance of closing of driveways. The Contractor shall make every effort to minimize the amount of public parking temporarily eliminated due to construction in areas fronting businesses. No stockpiles of pipe or other material will be allowed in traveled right -of-ways after working hours unless otherwise approved by the Engineer.

5.5 Safety
A. Contractor shall be solely responsible for all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with applicable safety laws. Contractor shall comply with all Applicable Laws relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property.

B. The Contractor shall maintain emergency first aid treatment for his employees which complies with the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), and California Code of Regulations, Title 8, Industrial Relations Division 1, Department of Industrial Relations, Chapter 4. The Contractor shall ensure the availability of emergency medical services for its employees in accordance with 466
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California Code of Regulations, Title 8, Section 1512. The Contractor shall submit an Illness and Injury Prevention Program and a Project Site specific safety program to the City prior to beginning Work. Contractor shall maintain a confined space program that meets or exceeds the City’s standards. Contractor needs to make themselves aware of the City’s safety policies and procedures, and shall meet or exceed all City standards in areas where the City must enter to perform inspections.

C. Hazard Communication Programs. Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Applicable Laws.

5.6 Hazardous Materials
A. The City shall not be responsible for any Hazardous Waste brought to the site by the Contractor. If the Contractor: (i) introduces and/or discharges a Hazardous Waste onto the site in a manner not specified by the Contract Documents; and/or (ii) disturbs a Hazardous Material identified in the Contract Documents, the Contractor shall hire a qualified remediation contractor at Contractor’s sole cost to eliminate the condition as soon as possible. Under no circumstance shall the Contractor perform Work for which it is not qualified. The City, in its sole discretion, may require the Contractor to retain at Contractor’s cost an independent testing laboratory.

B. If the Contractor encounters a Hazardous Waste which may cause foreseeable injury or damage, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such material or substance (except in an emergency situation); and (iii) notify the City (and promptly thereafter confirm such notice in writing).

C. Subject to Contractor’s compliance with this Article 5.6(B), the City shall verify the presence or absence of the Hazardous Waste reported by the Contractor, except as qualified under Article 5.6(A) and Article 5.6(B) in the event such material or substance is found to be present, verify that the levels of the hazardous material are below OSHA Permissible Exposure Levels and below levels which would classify the material as a state of California or federal hazardous waste. When the material falls below such levels, Work in the affected area shall resume upon direction by the City.

D. Contractor shall indemnify and hold harmless the City from and against claims, damages, losses and expenses, arising from a Hazardous Waste on the Project Site, if such Hazardous Waste exceeded OSHA Permissible Exposure Levels or levels which would classify the material as a state of California or federal hazardous waste, and was either i) shown on the Contract Documents or information available to bidders; or (ii) brought to the site by Contractor. Nothing in this paragraph shall obligate the Contractor to indemnify the City in the event of the sole or active negligence or willful misconduct of the City, its officers, agents, or employees. 467
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5.7 Sanitary Facilities.

A. Contractor shall provide sanitary temporary toilet buildings and hand washing facilities for the use of all workers. All toilets and hand washing facilities shall comply with local codes and ordinances. Toilets shall be placed inside sealed secondary containment devices installed on a flat, level surface. Accumulated liquids in the secondary containment devices shall be properly removed and legally disposed without spillage onto the ground. Toilets shall be kept supplied with toilet paper and shall have workable door fasteners. Toilets and hand washing facilities shall be serviced no less than once weekly and shall be present in a quantity of not less than 1 per 20 workers as required by Cal/OSHA regulations. The toilets and hand washing facilities shall be maintained in a sanitary condition at all times. Use of toilet and hand washing facilities in the Work under construction shall not be permitted.

Any other sanitary facilities required by Cal/OSHA shall be the responsibility of the Contractor.

5.8 Dust Control
A. Contractor, at its expense, shall maintain all excavations, embankments, haul roads, permanent access roads, plant sites, waste disposal areas, borrow areas, and all other work areas free from dust. Industry accepted methods of dust control suitable for the area involved, such as sprinkling, chemical treatment, light bituminous treatment or similar methods, will be permitted.

5.9 Air Pollution Control
A. Contractor shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements.

B. Without limiting the foregoing, Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the Air Quality Management District with jurisdiction over the Project and/or California Air Resources Board (CARB). Contractor shall specifically be aware of the application of these limits and requirements to "portable equipment", which definition includes any item of equipment with a fuel -powered engine. Contractor shall indemnify the City against any fines or penalties imposed by the air quality management district, CARB, or any other governmental or regulatory agency for its violations of Applicable Laws as well as those of its subcontractors or others for whom Contractor is responsible under its indemnity obligations provided for in the Contract Documents.

5.10 Water Quality Management and Compliance
A. Storm, surface, ground, nuisance, or other waters may be encountered at various times during construction of the Work. The Contractor hereby acknowledges that it has investigated the risk arising from such waters, has prepared its Bid accordingly, and assumes any and all risks and liabilities arising therefrom. 468
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B. Contractor 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 Work including, without limitation, all applicable provisions regulating discharges of storm water; the Federal Water Pollution Control Act (33 U.S.C. § 13000 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. These include, but are not limited to California State Water Resources Control Board (“State Water Board”) Order Number 2009- 0009-DWQ (NPDES Permit No. CAS000002), as amended by Order Numbers 2010 -0014-DWQ, 2012- 0006-DWQ, 2022 -0057-DWQ, and any subsequent amendment to or renewal thereof, State Water Resources Control Board Order No. 2013-0001-DWQ (NPDES Order No. CAS000004), Santa Ana Regional Water Quality Control Board No. R8- 2010-0036 (NPDES No. CAS618036), and any amendment or renewal thereof.

C. Contractor shall comply with all conditions of the State Water Board National Pollutant Discharge Elimination System General Permit for Waste Discharge Requirements for Discharges of Storm Water Runoff Associated with Construction Activity (“Construction General Permit”) for all construction activity which results in the disturbance of in excess of one acre of total land area or which is part of a larger common area of development or sale. Contractor shall comply with the lawful requirements of the City, and any other applicable municipality, drainage district, or other local agency with jurisdiction over the location where the Work is to be conducted, regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.

D. Unless otherwise specified in the Special Conditions or other portion of the Contract Documents, the City has not prepared a Storm Water Pollution Prevention Plan (“SWPPP”) or other storm water compliance plan for the Project Site. A SWPPP must be prepared and Best Management Practices (BMP) must be implemented for the Project Site. A qualified SWPP Developer (“QSD”) and a Qualified SWPPP Practitioner (“QSP”) for the project is required to prepare and implement the SWPPP for the Project Site, including condition and documenting weekly inspections of the project, pre- and post-storm event inspections and inspections every 24 hours, for annual reporting and proper site management. The Contractor shall retain personnel serving as QSD(s) that shall have an active and current certification. Engineering and/or geology work performed for the site shall be conducted by a California licensed professional.

Contractor shall be responsible for filing the Notice of Intent (“NOI”) and for obtaining coverage under the Construction General Permit. This includes filing all necessary documentation including the Permit Registration Documents (“PRDs”) through the Stormwater Multiple Applications and Report Tracking System (“SMARTS”); preparing and implementing a SWPPP for the Work site; implementing all other provisions, and monitoring and reporting requirements required by the Construction General Permit; and providing a Qualified SWPPP Developer (“QSD”) and Qualified SWPPP Practitioner (“QSP”), as necessary for all Work site activities, including but not limited to preparation and submittal of all reports, plans, inspections, and monitoring information in compliance with the Construction General Permit. All 469
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submittals shall be coordinated with the City’s Legally Responsible Person and Authorized Signatory as those terms are defined in the Construction General Permit.

Before any NOI, PRD, SWPPP, or other Construction General Permit -related document may be submitted to the State Water Board or implemented on the Project site, it must first be reviewed and approved by the City and/or City’s designee.

Contractor shall include all costs of compliance with specified requirements in the Contract Price.

E. The City retains the right to develop its own documentation for the Project site, including but not limited to the SWPPP, and in the alternative may require Contractor to adopt and implement portions of the City developed SWPPP. The City expressly reserves the right to procure coverage under the Construction General Permit for the Work site if Contractor fails to draft satisfactory PRDs or SWPPP or otherwise fails to proceed in a manner that complies with the requirements of the Construction General Permit. The City additionally reserves the right to hire additional contractors to maintain compliance at the Work site. Whether Contractor has adequately maintained compliance with the Construction General Permit shall be the City’s sole determination. Any costs incurred by the City in procuring coverage under the Construction General Permit, or drafting and/or implementing a SWPPP for the Work site shall be paid by Contractor.

F. Notwithstanding the above, for those Work sites where construction activity results in the disturbance of less than one acre of total land area and/or do not need coverage under the Construction General Permit, the Contractor shall be responsible for preparing and implementing an Erosion and Sediment Control Plan in accordance with State Water Resources Control Board Order No. 2013- 0001- DWQ (NPDES Order No. CAS000004) and any amendment to or renewal thereof.

G. Failure to comply with the Construction General Permit, laws, regulations, and ordinances listed in this Article is a violation of federal and state law.

Notwithstanding any other indemnity contained in these Contract Documents, Contractor agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, fees, costs, expenses, or losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the Permit, laws, regulations, and ordinances listed above, arising out of or in connection with the Work, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.

H. The City reserves the right to defend any enforcement action or civil action brought against the City for Contractor’s failure to comply with any applicable water quality law, regulation, or policy. Contractor hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and any relevant enforcement entity.

5.11 Environmental Quality Protection
A. The Contractor shall comply with all requirements of applicable federal, state, and local environmental rules and regulations. Any infractions of said rules and 470
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regulations by the Contractor during the term of the Contract, which result in penalties, will be the responsibility of the Contractor. The City operates under a number of environmental permits issued by various agencies. If due to an action, inaction, or negligence by the Contractor, the City becomes subject to non - compliance penalties, the cost of such penalties shall be borne by the Contractor.

B. The Contractor shall exercise care to preserve the natural landscape and vegetation, and shall conduct operations so as to prevent unnecessary destruction, scarring, or defacing of the natural surroundings in the vicinity of the Work.

Movement of crews and equipment within the rights-of-way and over routes provided for access to the Work shall be performed in a manner to prevent damage to property. When no longer required, construction roads shall be restored to original contours. Upon completion of the Work, and following removal of construction facilities and required cleanup, land used for construction purposes and not required for the completed installation shall be scarified and regraded, as required, so that all surfaces are left in a condition that will facilitate natural revegetation, provide for proper drainage, and prevent erosion.

C. If, in the performance of the Work, evidence of the possible occurrence of any Federally listed threatened or endangered plant or animal is discovered, the Contractor shall notify the City Representative immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to City within two (2) Days. The Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the endangered plant or animal. If directed by the City Representative, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Any City directed changes to the Work as a result of a siting will be pursuant to the Contract Documents. Any costs or delays incurred by City or the Contractor due to unreasonable or false notification of an endangered plant or animal will be borne by the Contractor.

D. If, in the performance of the Work, Contractor should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden deposits) through excavation, grading, watering or other means, the Contractor shall notify the construction/archeological monitor and/or the City Representative immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to the construction/archeological monitor and/or City within two (2) Days. The Contractor shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the cultural resource. If directed by the City Representative, Contractor will refrain from working in the immediate area, suspend the Work in its entirety, or re- sequence and/or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Should the presence of cultural resources be confirmed, the Contractor will assist the City Representative and the construction/archeological monitor in the preparation and implementation of a data recovery plan. The Contractor shall provide such cooperation and assistance as may be necessary to preserve the cultural resources for removal or other disposition. Any City directed changes to the Work as a result of the cultural resource will be pursuant to the Contract Documents. Should 471
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Contractor, without permission, injure, destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the Site, it will be subject to disciplinary action, arrest and penalty under applicable law. The Contractor shall be principally responsible for all costs of mitigation and/or restoration of cultural resources related to the unauthorized actions identified above. Contractor shall be required to pay for unauthorized damage and mitigation costs to cultural resources (historical and archeological resources) as a result of unauthorized activities that damage cultural resources and shall indemnify City pursuant to the Contract Documents.

5.12 Excessive Noise
A. Contractor shall use only such equipment on the Work and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by Cal/OSHA. Contractor shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements.

B. No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage or be determined to be ineffective or defective, the Contractor shall promptly remove the equipment and shall not return said equipment to the job until the device is repaired or replaced. Said noise and vibration level requirements shall apply to all equipment on the job or related to the job, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the Contractor.

5.13 Diversion of Recyclable Waste Material
A. In compliance with the applicable City’s waste reduction and recycling efforts, Contractor shall divert all Recyclable Waste Materials to appropriate recycling centers as required for compliance with the local jurisdiction’s waste diversion ordinances. Contractor will be required to submit weight tickets and written proof of diversion with its monthly progress payment requests. Contractor shall complete and execute any certification forms required by the City or other applicable agencies to document Contractor’s compliance with these diversion requirements. All costs incurred for these waste diversion efforts shall be the responsibility of the Contractor.

5.14 Inspector’s Field Office.

A. If required by the City, the Contractor shall be responsible for providing the inspector’s field office. The office shall be a substantial waterproof construction with adequate natural light and ventilation by means of stock design windows. Door shall have a key type lock or padlock clasp. The office shall have heating and air conditioning and shall be equipped with a telephone, a telephone answering machine, an ability to connect to the internet, and a fax machine at Contractor’s expense. The field office shall be provided within 20 Days of the Notice to Proceed.

B. A table satisfactory for the study of plans and two chairs shall be provided by Contractor. Contractor shall provide and pay for adequate electric lights, local 472
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telephone service, and adequate heat and air conditioning for the field office until authorized removal.

5.15 Contractor’s Supervision.

A. Contractor shall continuously keep at the Project site, a competent and experienced full-time Project superintendent acceptable to the City. Superintendent must be able to proficiently speak, read and write in English and shall have the authority to make decisions on behalf of the Contractor. Contractor shall continuously provide efficient supervision of the Project.

5.16 Workers.

A. Contractor shall at all times enforce strict discipline and good order among its employees. Contractor shall not employ on the Project any unfit person or any one not skilled in the Work assigned to him or her.

B. Any person in the employ of the Contractor whom the City may deem incompetent or unfit shall be dismissed from the Work and shall not be employed on this Project.

5.17 Independent Contractors.

A. Contractor shall be an independent contractor for the City and not an employee.

Contractor understands and agrees that it and all of its employees shall not be considered officers, employees, or agents of the City and are not entitled to benefits of any kind normally provided employees of the City, including but not limited to, state unemployment compensation or workers’ compensation. Contractor assumes full responsibility for the acts and omissions of its employees or agents related to the Work.

5.18 Verification of Employment Eligibility.

A. By executing the Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors, sub-subcontractors and consultants to comply with the same. Each person executing this Contract on behalf of Contractor verifies that he or she is a duly authorized officer of Contractor and that any of the following shall be grounds for the City to terminate the Contract for cause: (1) failure of the Contractor or its Subcontractors, sub-subcontractors or consultants to meet any of the requirements provided for in this Article; (2) any misrepresentation or material omission concerning compliance with such requirements; or (3) failure to immediately remove from the Work any person found not to be in compliance with such requirements.

5.19 Labor.

A. Hours of Work

1. As provided in Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code, Contractor stipulates that eight (8) hours of labor shall 473
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constitute a legal day’s work. The time of service of any worker employed at any time by the Contractor or by any subcontractor on any subcontract under this Contract upon the Work or upon any part of the Work contemplated by this Contract is limited and restricted to eight (8) hours during any one calendar day and 40 hours during any one calendar week, except as hereinafter provided.

Notwithstanding the provisions herein above set forth, work performed by employees of Contractor in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon this public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one- half times the basic rate of pay.

2. The Contractor and every Subcontractor shall keep an accurate record showing the name of and actual hours worked each calendar day and each calendar week by each worker employed in connection with the Work or any part of the Work contemplated by this Contract. The record shall be kept open at all reasonable hours to the inspection of the City and to the Division of Labor Law Enforcement, Department of Industrial Relations of the State of California.

3. The Contractor shall pay to the City a penalty of twenty -five dollars ($25.00) for each worker employed in the execution of this Contract by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any calendar day and 40 hours in any one calendar week in violation of the provisions of Article 3 (commencing at section 1810), Chapter 1, Part 7, Division 2 of the Labor Code.

4. Any work necessary to be performed after regular working hours, or on Saturdays and Sundays or other holidays, shall be performed without additional expense to the City.

5. If Contractor gives notice of an inspection pursuant to the Contract Documents, the City will provide inspection during normal working hours from 7:00 a.m. to 3:30 p.m. Monday through Friday. Requested inspections before or after this time will be charged to the Contractor as reimbursable inspection time. Inspections on weekends requires two (2) Days’ notice for review and approval. Upon written request and approval the 8.5 hour working day may be changed to other limits subject to city/county ordinance.

6. It shall be unlawful for any person to operate, permit, use, or cause to operate any of the following at the Project Site, other than between the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday, with no Work allowed on City -observed Holidays, unless otherwise approved by the City:
a. Powered Vehicles
b. Construction Equipment
c. Loading and Unloading Vehicles
d. Domestic Power Tools
B. Payroll Records; Labor Compliance
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1. Pursuant to Labor Code section 1776, Contractor and all subcontractors shall maintain weekly certified payroll records, showing the names, addresses, Social Security numbers, work classifications, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by them in connection with the Work under this Contract. Contractor shall certify under penalty of perjury that records maintained and submitted by Contractor are true and accurate. Contractor shall also require Subcontractor(s) to certify weekly payroll records under penalty of perjury.

2. In accordance with Labor Code section 1771.4, the Contractor and each Subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on the specified interval and format prescribed by the DIR, which may include electronic submission. Contractor shall comply with all requirements and regulations from the DIR relating to labor compliance monitoring and enforcement. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3. Any stop orders issued by the DIR against Contractor or any Subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Contractor or any Subcontractor.

4. The payroll records described herein shall be certified and submitted by the Contractor at a time designated by the City. The Contractor shall also provide the following:
a. A certified copy of the employee’s payroll records shall be made available for inspection or furnished to such employee or his or her authorized representative on request. b. A certified copy of all payroll records described herein shall be made available for inspection or furnished upon request of the DIR.

5. Unless submitted electronically, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement (“DLSE”) of the DIR or shall contain the same information as the forms provided by the DLSE.

6. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency, the City, the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement shall be marked or obliterated in such a manner as to prevent disclosure of an individual's name, address and social security number. The name and address of the Contractor awarded the Contract or performing the Contract shall not be marked or obliterated.
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7. In the event of noncompliance with the requirements of this Article, the Contractor shall have ten (10) Days in which to comply subsequent to receipt of written notice specifying in what respects the Contractor must comply with this Article. Should noncompliance still be evident after such 10- day period, the Contractor shall pay a penalty of one hundred dollars ($100.00) to the City for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payment then due.

8. The responsibility for compliance with this Article shall rest upon the Contractor.

C. Prevailing Rates of Wages

1. The Contractor is aware of the requirements of 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 this Project involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. The Contractor shall obtain a copy of the prevailing rates of per diem wages at the commencement of this Contract from the website of the Division of Labor Statistics and Research of the Department of Industrial Relations located at www.dir.ca.gov. In the alternative, the Contractor may view a copy of the prevailing rate of per diem wages which are on file at the City’s Administration Office and shall be made available to interested parties upon request. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification, or type of worker needed to perform work on the Project available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the Project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws.

2. The Contractor shall forfeit as a penalty to the City not more than Two Hundred Dollars ($200.00), pursuant to Labor Code section 1775, for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate as determined by the Director of the DIR for such work or craft in which such worker is employed for any public work done under the Contract by it or by any Subcontractor under it. The difference between such prevailing wage rate and the amount paid to each worker for each calendar day or portion thereof, for which each worker was paid less than the prevailing wage rate, shall be paid to each worker by the Contractor.

3. Contractor shall post, at appropriate conspicuous points on the Project Site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned.

D. Public Works Contractor Registration
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1. Pursuant to Labor Code sections 1725.5 and 1771.1, the Contractor and its Subcontractors must be registered with the DIR prior to the execution of a contract to perform public works. By entering into this Contract, Contractor represents that it is aware of the registration requirement and is currently registered with the DIR.

Contractor shall maintain a current registration for the duration of the Project.

Contractor shall further include the requirements of Labor Code sections 1725.5 and 1771.1 in any subcontract and ensure that all Subcontractors are registered at the time this Contract is entered into and maintain registration for the duration of the Project. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

E. Employment of Apprentices

1. Contractor and all Subcontractors shall comply with the requirements of Labor Code sections 1777.5 and 1777.6 in the employment of apprentices.

2. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.

3. Knowing violations of Labor Code section 1777.5 will result in forfeiture not to exceed one hundred dollars ($100.00) for each calendar day of non -compliance pursuant to Labor Code section 1777.7.

F. Nondiscrimination/Equal Employment Opportunity

1. Pursuant to Labor Code section 1735 and other applicable provisions of law, the Contractor and its Subcontractors shall not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law on this Project. The Contractor will take affirmative action to insure that employees are treated during employment or training without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other classifications protected by law.

G. Debarment of Contractors and Subcontractors

1. Contractors or Subcontractors may not perform work on a public works project with a subcontractor who is ineligible to perform work on a public project pursuant to Labor Code section 1777.1 or 1777.7. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid, or may have been paid to a debarred subcontractor by a contractor on the project shall be returned to the City. The Contractor shall be responsible for the payment 477
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of wages to workers of a debarred subcontractor who has been allowed to work on the Project.

5.20 Subcontracts.

A. Contractor agrees to bind every Subcontractor to the terms of the Contract Documents as far as such terms are applicable to Subcontractor’s portion of the Work. Contractor shall be as fully responsible to the City for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by its subcontractors, as Contractor is for acts and omissions of persons directly employed by Contractor. Nothing contained in these Contract Documents shall create any contractual relationship between any subcontractor and the City.

B. The City reserves the right to accept all subcontractors. The City’s acceptance of any Subcontractor under this Contract shall not in any way relieve Contractor of its obligations in the Contract Documents.

C. Prior to substituting any Subcontractor listed in the Bid Forms, Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq.

5.21 Progress Meetings
A. The Contractor shall schedule and hold regular progress meetings at least weekly and at other times as requested by Engineer or as required by progress of the Work.

The Contractor, City, and all Subcontractors active on the Site shall attend each meeting. Contractor may at its discretion request attendance by representatives of its Suppliers, manufacturers, and other Subcontractors. The City will preside at the progress meetings and will arrange for keeping and distributing the minutes. The purpose of the meetings is to review the progress of the Work, maintain coordination of efforts, discuss changes in scheduling, and resolve other problems which may develop. During each meeting, the Contractor shall present any issues which may impact its progress with a view to resolve these issues expeditiously.

5.22 Submittals
A. Schedule of Submittals . Within five (5) Days after the Notice to Proceed (unless otherwise specified in the Contract Documents), Contractor will prepare and deliver a Schedule of Submittals to the City that has been fully integrated with the progress schedule and identifies each Submittal required by the Contract Documents as well as the date on which Contractor will deliver each Submittal to the City. Each Submittal must be delivered to the City at least thirty (30) Days prior to the date the material or equipment is scheduled to be incorporated into the Work. The Contractor is responsible for any schedule delays resulting from the Submittal process.

B. Submittal Procedures.

1. Contractor will follow the following procedures for each Submittal, Shop Drawing and Sample required by the Contract Documents:
a. Submittals must be transmitted electronically.
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b. Transmittals will be sequentially numbered. Contractor to mark revised Submittals with original number and sequential alphabetic suffix. c. Each Submittal will identify the Project, Contractor, Subcontractor and Supplier, pertinent Drawing and detail number, and Specification Section number appropriate to Submittal.
d. By transmitting a Submittal, Contractor certifies it has reviewed and approved each Submittal, verified products required, field dimensions, adjacent construction Work, and that coordination of information is according to requirements of the Work and Contract Documents.
e. Identify variations in Contract Documents and product or system limitations that may differ and/or be detrimental to successful performance of completed Work.
f. When Submittal is revised for resubmission, Contractor shall promptly address the City’s comments and resubmit. Contractor shall identify changes made since previous submission.
g. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for deviations from the Contract Documents unless Contractor has, in writing, called the City’s attention to such deviations at time of submission and the City has taken no exception to the deviation. The City’s review of Shop Drawings shall not relieve Contractor from responsibility for errors in Shop Drawings.
h. Submittals not required by the Contract Documents or requested by the City will not be acknowledged or processed.
i. Incomplete Submittals will not be reviewed by the City. Delays resulting from incomplete Submittals are not the responsibility of the City. j. Contractor shall not be entitled to any extension of the Contract Times as a result of the Submittal process.
k. Contractor shall allow a minimum of 20 working days for review of Submittals unless otherwise specified in the Contract Documents.

2. Where a Submittal, Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to the City review and approval of the pertinent submittal will be performed at the sole risk and expense and responsibility of Contractor.

C. Schedule Milestone for Submittals. Contractor must submit all Submittals required by the Contract Documents in accordance with the Schedule of Submittals. If Contractor fails to submit the Submittals in accordance with the Schedule of Submittals, Contractor will be solely liable for any delays or impacts caused by the delayed Submittal, whether direct or indirect. Contractor will be liable for the time calculated from the date the Submittal is due until the date a compliant Submittal is 479
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made. A compliant Submittal will be one that is complete and satisfies the requirements of the Contract Documents.

5.23 Shop Drawings and Sample Submittal Procedures.

A. Before submitting each Shop Drawing or Sample, Contractor shall have:

1. Reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents;

2. Determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto;

3. Determined and verified the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; and

4. Determined and verified all information relative to Contractor’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto.

B. With each Submittal, Contractor shall give the City specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawings or Sample Submittal and, in addition, a specific notation made on each Shop Drawing or Sample submitted to the City for review and approval of each such variation.

C. Shop Drawings.

1. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show the City the services, materials, and equipment Contractor proposes to provide and to enable the City to review the information for assessing conformance with information given and design concept expressed in Contract Documents.

2. When required by individual Specification sections, provide Shop Drawings signed and sealed by a professional engineer responsible for designing components shown on Shop Drawings. Shop Drawings must include signed and sealed calculations to support design in a form suitable for submission to and approval by authorities having jurisdiction.

3. Shop Drawings for steel structures shall consist of shop details, erection and other working Drawings showing details, dimensions, sizes of members and other information necessary for the complete fabrication and erection of the metal work.

4. Shop Drawings of concrete structures shall consist of such detailed drawings as may reasonably be required for the successful prosecution of the Work and which are not included in the Drawings furnished by the Engineer. These may include 480
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drawings for false work, bracing, centering and form work, masonry layout diagrams, and diagrams for bent reinforcement.

5. Contractor shall make revisions and provide additional information when required by authorities having jurisdiction.

D. Samples. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as required to enable the City to review the submittal for assessing conformance with information given and design concept expressed in Contract Documents. Samples should be of appropriate size and detail to assess functional, aesthetic, color, texture, patterns and finish selection.

E. City’s Review.

1. The City will review Shop Drawings and Samples in accordance with the Schedule of Submittals. The City’s review and acceptance will be only to determine if the items covered by the Submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents.

2. The City review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions.

3. The City’s review and acceptance shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless the City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample.

F. Resubmittal Procedures. Contractor shall make corrections required by the City and shall return corrected Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by the City on previous Submittals.

5.24 Record (“As-Built”) Drawings.

A. The Contractor shall maintain one record set of Contract Documents at the Site or digitally in an acceptable format. On these, it shall mark all Project conditions, locations, configurations, and any other changes or deviations which may vary from the information represented in the original Contract Documents, including buried or concealed construction and utility features which are revealed during the course of construction. Special attention shall be given to recording the horizontal and vertical location of all buried utilities that differ from the locations indicated, or which were not indicated on the Drawings. For all Projects involving the installation of any pipeline, Contractor shall survey and record the top of the pipe at a minimum of every 100 linear feet, and at each bend, recording both the horizontal and vertical 481
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locations. Said Drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Work as actually constructed. Any required as-built drawings of civil engineering elements of the Work shall be prepared by a registered civil engineer.

B. These master Record Drawings of the as -built conditions, including all revisions made necessary by Addenda and Change Orders, shall be maintained up- to-date during the progress of the Project. Red ink shall be used for alterations and notes.

Notes shall identify relevant Change Orders by number and date. Record Drawings shall be accessible to the Engineer at all times during the construction period.

Failure on the Contractor’s part to keep Record Drawings current could result in withholding partial payment.

C. Upon completion of the Project and as a condition of final acceptance, the Contractor shall finalize and deliver a complete set of Record Drawings to the Engineers. The information submitted by the Contractor will be assumed to be correct, and the Contractor shall be responsible for, and liable to the City, for the accuracy of such information, and for any errors or omissions which may or may not appear on the Record Drawings.

D. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete the Record Drawings shall be included in Contractor’s bid and distributed in the Bid Schedule. No additional compensation shall be made to the Contractor for this Work.

5.25 Layout and Field Engineering.

A. The Contractor shall utilize a properly licensed surveyor to perform all layout surveys required for the control and completion of the Work, and all necessary surveys to compute quantities of Work performed.

5.26 Separate Contracts and Cooperation.

A. Separate Contracts. The City reserves the right to let other contracts in connection with this Work or on the Project site. Contractor shall permit other contractors reasonable access and storage of their materials and execution of their work and shall properly connect and coordinate its Work with theirs. To ensure proper execution of its subsequent Work, Contractor shall immediately inspect work already in place and shall at once report to the Engineer any problems with the Work in place or discrepancies with the Contract Documents.

B. Cooperation. Contractor shall ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by the City in prosecution of the Project to the end that Contractor may perform this Contract in the light of such other contracts, if any. Nothing herein contained shall be interpreted as granting to Contractor exclusive occupancy at site of the Project.

Contractor shall not cause any unnecessary hindrance or delay to any other contractor working on the Project. If simultaneous execution of any contract for the Project is likely to cause interference with performance of some other contract or contracts, the Engineer shall decide which Contractor shall cease Work temporarily 482
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and which contractor shall continue or whether work can be coordinated so that contractors may proceed simultaneously. The City shall not be responsible for any damages suffered or for extra costs incurred by Contractor resulting directly or indirectly from award, performance, or attempted performance of any other contract or contracts on the Project Site.

5.27 Work Site.

A. Limitation of Use of Site and Other Areas. Rights-of-way, easements, or rights -of- entry for the Work will be provided by the City. Unless otherwise specified in the Special Provisions, the Contractor shall make arrangements, pay for, and assume all responsibility for acquiring, using, and disposing of additional work areas and facilities temporarily required. The Contractor shall indemnify and hold the City harmless from all claims for damages caused by such actions. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Applicable Laws, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to City or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work.

B. Site Maintenance. During the progress of the Work, Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to Applicable Laws. The Contractor shall furnish trash bins for all debris from construction. All debris shall be placed in trash bins daily. Forms and false-work that are to be re -used shall be stacked neatly concurrently with their removal. Forms and false- work that are not to be re -used shall be disposed of concurrently with their removal.

C. Cleaning. Prior to Completion of the Work, Contractor shall clean the Site and make it ready for utilization by the City. At the completion of the Work Contractor shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents.

5.28 Utility Usage.

A. All temporary utilities, including but not limited to electricity, water, gas, and telephone, used on the Work shall be furnished and paid for by Contractor.

Contractor shall provide necessary temporary distribution systems, including meters, if necessary, from distribution points to points on the Work where the utility is needed. Upon completion of the Work, Contractor shall remove all temporary distribution systems. Contractor shall provide necessary and adequate utilities and pay all costs for water, electricity, gas, oil, and sewer charges required for completion of the Work, including but not limited to startup and testing required in the Contract Documents. All permanent meters installed shall be listed in the Contractor’s name until the Work is accepted. For Work to be performed in existing City facilities, Contractor may use the City’s existing utilities, provided such use is reasonable under the circumstances.

If Contractor uses the City utilities, it will not need to 483
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compensate the City for reasonably consumption of utilities, but Contractor will be responsible for any excessive, unreasonable or wasteful utility usage. Amounts due the City under this section may be deducted from progress payments.

5.29 Protection of Work and Property.

A. The Contractor shall digitally record video and take photographs of the Project site and adjacent improvements in a manner and quality that clearly depicts the existing condition of the Project Site and adjacent improvements immediately prior to the start of Work (minimum 1080p video and 4MP photo). All videos and photographs shall be date and time stamped. The Contractor shall submit the video and photos in digital format on a memory stick before the commencement of Work, along with a map outlining the route and locations of the videos and/or photographs. The Contractor shall be responsible for all damages to persons or property that occur as a result of the Work. Contractor shall be responsible for the proper care and protection of all materials delivered and Work performed until completion and final acceptance by the City. All Work shall be solely at the Contractor’s risk.

B. Contractor shall adequately protect adjacent property from settlement or loss of lateral support as necessary. Contractor shall comply with all applicable safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the Project site where Work is being performed. Contractor shall erect and properly maintain at all times, as required by field conditions and progress of work, all necessary safeguards, signs, barriers, lights, and watchmen for protection of workers and the public, and shall post danger signs warning against hazards created in the course of construction.

C. Contractor shall provide such heat, covering, and enclosures as are necessary to protect all Work, materials, equipment, appliances, and tools against damage by weather conditions.

D. Contractor shall take adequate precautions to protect existing sidewalks, curbs, pavements, utilities, and other adjoining property and structures, and to avoid damage thereto, and Contractor shall repair any damage thereto caused by the Work operations. Contractor shall:

1. Enclose the working area with a substantial barricade, and arrange work to cause minimum amount of inconvenience and danger to the public.

2. Provide substantial barricades around any shrubs or trees indicated to be preserved.

3. Deliver materials to the Site over a route designated by the City.

4. Provide any and all dust control required and follow the applicable air quality regulations as appropriate. If the Contractor does not comply immediately with a notice from the City or a public agency responsible for air quality, the City shall have the authority to provide dust control and deduct the cost from payments to the Contractor.
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5. Confine Contractor’s apparatus, the storage of materials, and the operations of its workers to limits required by law, ordinances, permits, or directions of the City.

Contractor shall not unreasonably encumber the Site with its materials.

6. Take care to prevent disturbing or covering any survey markers, monuments, or other devices marking property boundaries or corners. If such markers are disturbed by accident, they shall be replaced by a civil engineer or land surveyor acceptable to the City, at no cost to the City.

7. Ensure that existing facilities, fences and other structures are all adequately protected and that, upon completion of all Work, all facilities that may have been damaged are restored to a condition acceptable to the City.

8. Preserve and protect from injury all buildings, pole lines and all directional, warning and mileage signs that have been placed within the right-of-way.

9. At the completion of work each day, leave the Work and the Site in a clean, safe condition.

10. Comply with any stage construction and/or traffic handling plans. Access to residences and businesses shall be maintained at all times, except with the City’s written approval. Any request for approval to reduce or restrict access to residences and business must be submitted to the City at least seven (7) Days in advance, and the City may issue or withhold approval in its sole discretion.

E. These precautionary measures will apply continuously and not be limited to normal working hours. Full compensation for the work involved in the protection and preservation of life, safety and property as above specified shall be considered as included in the prices paid for the various contract items of Work, and no additional allowance will be made therefor.

F. Should damage to persons or property occur as a result of the Work, Contractor shall promptly notify the City, in writing. Contractor shall be responsible for proper investigation, documentation, including video or photography, to adequately memorialize and make a record of what transpired. The City shall be entitled to inspect and copy any such documentation, video, or photographs.

G. Contractor shall maintain all investigation documentation including video and/or photographs for a minimum of four (4) years following completion of the Project.

5.30 Emergencies.

A. In emergencies affecting the safety or protection of persons or the Work or Property at the Site or adjacent thereto, the Contractor, without special instruction or authorization from the City or the Engineer, is obligated to act to prevent threatened damage, injury or loss. The Contractor shall give the Engineer prompt written notice if the Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby.
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ARTICLE 6 -MATERIALS; INSPECTION

6.1 Access to Work.

A. The City , Engineer, their consultants and other representatives and personnel, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor’s safety procedures and programs.

6.2 Materials.

A. Except as otherwise specifically stated in the Contract Documents, Contractor shall provide and pay for all materials, labor, tools, equipment, water, lights, power, transportation, superintendence, temporary constructions of every nature, and all other services and facilities whatsoever necessary to execute and complete this Contract within the Contract Time. Unless otherwise specified, all materials, parts, and equipment furnished by the Contractor in the Work shall be new, the best of their respective kinds and grades as noted and/or specified, and workmanship shall be of good quality.

B. No materials, supplies, or equipment for Work under this Contract shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein or in any part thereof is retained by the seller or supplier. Contractor warrants good title to all material, supplies, and equipment installed or incorporated in the Work and agrees upon completion of all work to deliver the Project, to the City free from any claims, liens, or charges.

C. Materials shall be furnished in ample quantities and at such times as to ensure uninterrupted progress of the Work and shall be stored properly and protected as required by the Contract Documents. Contractor shall be entirely responsible for damage or loss by weather or other causes to materials or Work. Materials shall be stored on the Project Site in such manner so as not to interfere with any operations of the City or any independent contractor.

D. Contractor shall verify all measurements, dimensions, elevations, and quantities before ordering any materials or performing any Work, and the City shall not be liable for Contractor’s failure to so. Except for an adjustment to Unit Price Work for item overruns and underruns in accordance with the Contract Documents, no additional compensation, over and above payment for the actual quantities at the prices set out in the Bid Schedule, will be allowed because of differences between actual measurements, dimension, elevations and quantities and those indicated on the Plans and in the Specifications. Any difference therein shall be submitted to the Engineer for consideration before proceeding with the Work.

6.3 Test and Inspections.

A. Inspection and Testing of Work and Materials
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1. If the Contract Documents, the Engineer, or any instructions, laws, ordinances, or public authority requires any part of the Work to be tested or approved, Contractor shall provide the Engineer at least two (2) working days’ notice of its readiness for observation or inspection. If inspection is by a public authority other than the City, Contractor shall promptly inform the City of the date fixed for such inspection.

Required certificates of inspection (or similar) shall be secured by Contractor.

Costs for City testing and inspection shall be paid by the City. Costs of tests for Work found not to be in compliance shall be paid by the Contractor.

2. The Contractor shall pay for the cost of any minimum “show up” costs of a materials testing technician that was called for by the Contractor but ultimately the Contractor work was not ready for the inspection. Any such costs shall be deducted from any amounts due to the Contractor.

3. If any Work is done or covered up without the required testing or approval, the Contractor shall uncover or deconstruct the Work, and the Work shall be redone after completion of the testing at the Contractor’s cost in compliance with the Contract Documents.

4. Where inspection and testing are to be conducted by an independent laboratory or agency, materials or samples of materials to be inspected or tested shall be selected by such laboratory or agency, or by the City, and not by Contractor.

Unless otherwise stated and as provided by the Contract Documents, the City shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents. All tests or inspections of materials shall be made in accordance with the commonly recognized standards of national organizations.

5. Reexamination of Work may be ordered by the City. If so ordered, Work must be uncovered or deconstructed by Contractor. If Work is found to be in accordance with the Contract Documents, the City shall pay the costs of reexamination and reconstruction. If such work is found not to be in accordance with the Contract Documents, Contractor shall pay all costs.

B. Testing of Materials

1. In advance of manufacture of materials to be supplied by Contractor which must be tested or inspected, Contractor shall notify the City so that the City may arrange for testing at the source of supply. Any materials which have not satisfactorily passed such testing and inspection shall not be incorporated into the Work.

2. If the manufacture of materials to be inspected or tested will occur in a plant or location greater than sixty (60) miles from the City, the Contractor shall pay for any excessive or unusual costs associated with such testing or inspection, including but not limited to excessive travel time, standby time and required lodging.

3. Unless otherwise specified in the Special Provisions, all initial testing and a reasonable amount of retesting will be performed under the direction of the Engineer, and at no expense to the Contractor. The Contractor shall notify the Engineer in writing, at least 15 days in advance, of its intention to use materials for 487
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which tests are specified, to allow sufficient time to perform the tests. The notice shall name the proposed supplier and source of material. If the notice of intent to use is sent before the materials are available for testing or inspection, or is sent so far in advance that the materials on hand at the time will not last but will be replaced by a new lot prior to use on the Work, it will be the Contractor's responsibility to re- notify the Engineer when samples which are representative may be obtained.

4. A Certificate of Compliance shall be furnished to the Engineer prior to the use of any material or assembled material for which these Specifications so require or if so required by the Engineer. The Engineer may waive the materials testing requirements and accept a Certificate of Compliance. Material test data may be required by the Engineer to be included with the submittal. Materials used on the basis of a Certificate of Compliance may be sampled and tested at any time. The submission of a Certificate of Compliance shall not relieve the Contractor of responsibility for incorporating material into the Work which conforms to the requirements of the Contract Documents, and any material not conforming to the requirements will be subject to rejection by the Engineer whether in place or not.

5. Copies of mill certificates of composition and quality of all component materials (reinforcing steel, structural steel, lumber, etc.) incorporated in the construction of the Work shall be provided to the City at the time of delivery. City shall retain the right to reject any raw material not provided with a mill certificate at the time of delivery.

6. If, after incorporating such materials into the Work, it is found that sources of supply that have been approved do not furnish a uniform product, or if the product from any source proves unacceptable at any time, the Contractor shall furnish approved material from other approved sources. If any product proves unacceptable after improper storage, handling or for any other reason it shall be rejected, not incorporated into the Work, and shall be removed from the Project Site all at the Contractor’s expense.

6.4 Requests for Substitutions.

A. For the purposes of this provision, the term “substitution” shall mean the substitution of any material, method or service substantially equal to or better in every respect to that indicated in the Standard Specifications or otherwise referenced herein.

B. Pursuant to Public Contract Code section 3400(b), the City may make a finding that is described in the Notice Inviting Bids that designates certain products, things, or services by specific brand or trade name.

C. Unless specifically designated in the Special Conditions, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such specifications shall be deemed to be used for the purpose of facilitating the description of the material, process, or article desired and shall be deemed to be followed by the words “or equal.” Contractor may, unless otherwise stated, offer for substitution any material, process, or article which may be substantially equal to or better in every respect to that so indicated or specified in 488
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the Contract Documents. However, the City has adopted uniform standards for certain materials, processes, and articles.

D. The Contractor shall submit substitution requests, together with substantiating data, for substitution of any “or equal” material, process, or article no later than thirty-five (35) calendar days after award of Contract. Provisions regarding submission of substitution requests shall not in any way authorize an extension of time for the performance of this Contract. If a substitution request is rejected by the City, the Contractor shall provide the material, method or service specified herein. The City shall not be responsible for any costs incurred by the Contractor associated with substitution requests. The burden of proof as to the equality of any material, process, or article shall rest with the Contractor. The Engineer has the complete and sole discretion to determine if a material, process, or article is substantially equal to or better than that specified and to approve or reject all substitution requests.

E. Substantiating data as described above shall include, at a minimum, the following information:

1. A signed affidavit from the Contractor stating that the material, process, or article proposed as a substitution is substantially equal to or better than that specified in every way except as may be listed on the affidavit.

2. Illustrations, specifications, catalog cut sheets, and any other relevant data required to prove that the material, process, or article is substantially equal to or better than that specified.

3. A statement of the cost implications of the substitution being requested, indicating whether and why the proposed substitution will reduce or increase the amount of the contract.

4. Information detailing the durability and lifecycle costs of the proposed substitution.

F. Failure to submit all the required substantiating data detailed above in a timely manner so that the substitution request can be adequately reviewed may result in rejection of the substitution request. The Engineer is not obligated to review multiple submittals related the same substitution request resulting from the Contractor’s failure to initially submit a complete package.

G. Time limitations within this Article shall be strictly complied with and in no case will an extension of time for completion of the contract be granted because of Contractor’s failure to provide substitution requests at the time and in the manner described herein.

H. The Contractor shall bear the costs of all the City work associated with the review of substitution requests.

I. If substitution requests approved by the Engineer require that Contractor furnish materials, methods or services more expensive than that specified, the increased costs shall be borne by Contractor.
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ARTICLE 7 -SUBSURFACE AND PHYSICAL CONDITIONS; UTILITIES

7.1 Soils Investigations.

A. When a soils investigation report for the Site is available, such report is provided for informational purposes only. Any information obtained from such report as to subsurface soil condition, or to elevations of existing grades or elevations of underlying rock, is approximate only and is not guaranteed. Contractor acknowledges that any soils investigation report (including any borings) was prepared for purposes of design only and Contractor is required to examine the Site before submitting its Bid and must make whatever tests it deems appropriate to determine the condition of the so

7.2 Ownership of Site Materials Found.

A. The title to water, soil, rock, gravel, sand, minerals, timber and any other materials developed or obtained in the excavation or other operations of Contractor or any of its Subcontractors in the performance of the Contract, and the right to use said items in carrying out the Contract, or to dispose of same, is hereby expressly reserved by the City. Neither Contractor nor any of its Subcontractors nor any of their representatives or employees shall have any right, title, or interest in said materials, nor shall they assert or make any claim thereto. Contractor will, as determined by the City’s Representative, be permitted to use in the Work without charge, any such materials which meet the requirements of the Contract Documents, provided the City shall have the right to use or consume these materials without payment to a third party.

7.3 Existence of Utilities at the Work Site.

A. Existing Utilities

1. The location of known existing utilities and pipelines are shown on the Plans in their approximate locations. However, nothing herein shall be deemed to require the City to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the site of the project can be inferred from the presence of other visible facilities, such as buildings, cleanouts, meter and junction boxes, on or adjacent to the Site of the Project.

2. The City will assume the responsibility for the timely removal, relocation, or protection of existing main or trunk line utility facilities located on the Project site if such utilities are not identified by the City in the Contract Documents or which cannot reasonably be inferred from the presence of other visible facilities.

B. Utility Location

1. It shall be the Contractor’s responsibility to determine the exact location and depth of all utilities, including service connections, which have been marked by the respective utility owners and which the Contractor believes may affect or be affected by the Contractor’s operations. The Contractor shall not be entitled to additional compensation nor time extensions for work necessary to avoid 490
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interferences nor for repair to damaged utilities if the Contractor does not expose all such existing utilities as required by this Article.

2. The locating of utilities shall be in conformance with Government Code Section 4216 et seq. except for the City’s utilities located on the City’s property and not on public right-of-way.

3. A “High Priority Subsurface Installation” is defined in Government Code Section 4216 (j) as “high- pressure natural gas pipelines with normal operating pressures greater than 415kPA gauge (60psig) or greater than six inches nominal pipe diameter, petroleum pipelines, pressurized sewage pipelines, high-voltage electric supply lines, conductors, or cables that have a potential to ground of greater than or equal to 60kv, or hazardous materials pipelines that are potentially hazardous to workers or the public if damaged.”

4. A “Subsurface Installation” is defined in Government Code Section 4216 (s) as “any underground pipeline, conduit, duct, wire, or other structure, except nonpressurized sewer lines, nonpressurized storm drains, or other nonpressurized drain lines.”

5. Pursuant to Government Code Section 4216.2 the Contractor shall contact the appropriate regional notification center at least two (2) working days but not more than 14 Days before performing any excavation. The date of the notification shall not count as part of the two- working-day notice. Before notifying the appropriate regional notification center, the Contractor shall delineate the area to be excavated. The Contractor shall request that the utility owners conduct a utility survey and mark or otherwise indicate the location of their service. The Contractor shall furnish to the Engineer written documentation of its contact(s) with the regional notification center prior to commencing excavation at such locations.

6. After the utility survey is completed, the Contractor shall commence “potholing” or hand digging to determine the actual location of the pipe, duct, or conduit and in accordance with Government Code Section 4216.4 if the excavation within the “tolerance zone” of a subsurface installation. The Engineer shall be given notice prior to commencing potholing operations. The Contractor shall uncover all piping and conduits, to a point one (1) foot below the pipe, where crossings, interferences, or connections are shown on the Drawings, prior to trenching or excavating for any pipe or structures, to determine actual elevations. New pipelines shall be laid to such grade as to clear all existing facilities, which are to remain in service for any period subsequent to the construction of the run of pipe involved.

7. The Contractor's attention is directed to the requirements of Government Code Section 4216.2 (c) which provides: “When the excavation is proposed within 10 feet of a high priority subsurface installation, the operator of the high priority subsurface installation shall notify the excavator of the existence of the high priority subsurface installation to set up an onsite meeting prior to the legal excavation start date and time or at a mutually agreed upon time to determine actions or activities required to verify the location and prevent damage to the high priority subsurface installation. As part of the meeting, the excavator shall discuss with the operator the method and tools that will be used during the excavation and the 491
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information the operator will provide to assist in verifying the location of the subsurface installation. The excavator shall not begin excavating until after the completion of the onsite meeting.” The Contractor shall notify the Engineer in advance of this meeting.

C. Utility Relocation and Repair

1. If interferences occur at locations other than those indicated in the Contract Documents with reasonable accuracy, the Contractor shall notify the Engineer in writing. The Engineer will supply a method for correcting said interferences in accordance with the responsibilities of this section and Government Code Section 4215. To the extent any delay is caused thereby, Contractor shall submit a notice of delay within five (5) Days of discovery of the circumstances giving rise to the delay in accordance with Article 9.1 Change Orders and Time Extensions.

2. Care shall be exercised by the Contractor to prevent damage to adjacent existing facilities and public or private works; where equipment will pass over these obstructions, suitable planking shall be placed. If high priority subsurface installations are damaged and the operator cannot be contacted, the Contractor shall call 911 emergency services.

3. The City will compensate the Contractor for the costs of locating and repairing damage not due to the failure of the Contractor to exercise reasonable care, and for removing or relocating such main or trunk line utility facilities not indicated in the Contract Documents with reasonable accuracy, and for the cost of equipment on the Project necessarily idled during such work. The payment for such costs will be made as provided in Article 9.1 Change Orders and Time Extensions. The Contractor shall not be assessed liquidated damages for delay in completion of the Project, when such delay is caused by the failure of the City or utility company to provide for removal or relocation of such utility facilities. Requests for extensions of time arising out of utility relocation or repair delays shall be filed in accordance with Article 9.1 Change Orders and Time Extensions and Article 9.3 Time for Completion and Liquidated Damages.

4. The public utility, where it is the owner of the affected utility, shall have the sole discretion to perform repairs or relocation work or permit the Contractor to do such repairs or relocation work at a reasonable price. The right is reserved to the City and the owners of utilities or their authorized agents to enter upon the Work area for the purpose of making such changes as are necessary for the rearrangement of their facilities or for making necessary connections or repairs to their properties.

The Contractor shall cooperate with forces engaged in such work and shall conduct its operations in such a manner as to avoid any unnecessary delay or hindrance to the work being performed by such forces and shall allow the respective utilities time to relocate their facility.

5. When the Contract Documents indicate that a utility is to be relocated, altered or constructed by others, the City will conduct all negotiations with the utility company and the work will be done at no cost to the Contractor, unless otherwise stipulated in the Contract Documents.
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6. Temporary or permanent relocation or alteration of utilities desired by the Contractor for its own convenience shall be the Contractor’s responsibility and it shall make arrangements and bear all costs for such work.

D. Construction at Existing Utilities

1. Where the Work to be performed crosses or otherwise interferes with water, sewer, gas, or oil pipelines; buried cable; or other public or private utilities, the Contractor shall perform construction in such a manner so that no damage will result to either public or private utilities. It shall be the responsibility of the Contractor to determine the actual locations of, and make accommodates to maintain, all utilities.

2. Before any utility is taken out of service, permission shall be obtained by the Contractor from the owner. The owner, any impacted resident or business owner and the City Representative will be advised of the nature and duration of the utility outage as well as the Contractor’s plan for providing temporary utilities if required by the owner. The Contractor shall be liable for all damage which may result from its failure to maintain utilities during the progress of the Work, and the Contractor shall indemnify City as required by the Contract Documents from all claims arising out of or connected with damage to utilities encountered during construction; damages resulting from disruption of service; and injury to persons or damage to property resulting from the negligent, accidental, or intentional breaching of utilities.

3. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this work, shall be included in Contractor’s bid and distributed in the schedule of pay Items. No additional compensation shall be made to the Contractor for this work.

7.4 Trenches
A. Trenches Five Feet or More in Depth.

1. Contractor shall submit to the Engineer at the preconstruction meeting, a detailed plan showing the design of shoring, bracing, sloping or other provisions to be made for worker protection from hazards of caving ground during the excavation of any trench or trenches five feet or more in depth. If such plan varies from shoring system standards established by the Construction Safety Orders of the California Code of Regulations, Department of Industrial Relations, the plan shall be prepared by a California registered civil or structural engineer. The plan shall not be less effective than the shoring, bracing, sloping, or other provisions of the Construction Safety Orders, as defined in the California Code of Regulations. The Contractor shall designate in writing the “competent person” as defined in Title 8, California Code of Regulations, who shall be present at the Work Site each day that trenching/excavation is in progress. The “competent person” shall prepare and provide daily trenching/excavation inspection reports to the Engineer.

Contractor shall also submit a copy of its annual California Occupational Safety and Health Administration (Cal/OSHA) trench/excavation permit.

B. Excavations Deeper than Four Feet.
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1. If the Work involves excavating trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly within three (3) Days, and before the excavation is further disturbed, notify the City in writing of any of the following conditions:
a. Material that the Contractor believes may be material that is hazardous waste, as defined in section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law. b. Subsurface or latent physical conditions at the site differing from those indicated. c. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract

2. The City shall promptly investigate the conditions, and if it finds that the conditions do so materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the Work, shall issue a Change Order under the procedures described in Article

9.1 Change Orders and Time Extensions.

3. In the event that a dispute arises between the City and the Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all Work to be performed under the Contract. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the parties.

ARTICLE 8 -PROSECUTION OF THE WORK

8.1 Contractor’s Means and Methods.

A. Contractor is solely responsible for the means and methods utilized to perform the Work. In no case shall the Contractor’s means and methods deviate from commonly used industry standards.

8.2 Construction Schedule.

A. General Requirements. The schedule shall be prepared in a Critical Path Method (“CPM”) format and in an electronic scheduling program acceptable to the City and as specified in the Contract Documents. Contractor shall deliver the schedule and all updates to the City in both paper and electronic form. The electronic versions shall be in the format and include all data used to prepare the schedule. Copies are not acceptable.

B. Schedule. The receipt or approval of any schedules by the City shall not in any way relieve the Contractor of its obligations under the Contract Documents. The Contractor is fully responsible to determine and provide for any and all staffing and resources at levels which allow for good quality and timely completion of the Project. 494
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Contractor’s failure to incorporate all elements of Work required for the performance of the Contract or any inaccuracy in the schedule shall not excuse the Contractor from performing all Work required for a completed Project within the specified Contract Time. If the required schedule is not received by the time the first payment under the Contract is due, Contractor shall not be paid until the schedule is received, reviewed and accepted by the City.

C. Schedule Contents. The schedule shall allow enough time for inclement weather.

The schedule shall indicate the beginning and completion dates of all phases of construction; critical path for all critical, sequential time related activities; and “float time” for all “slack” or “gaps” in the non-critical activities. The schedule shall include appropriate time allowances and constraints for submittals, items of interface with Work performed by others, and specified construction, start -up and performance tests. All float shall be owned by the Project. Schedules indicating early or late completion shall not modify or have any effect on the Contract Time, regardless of whether the schedules are reviewed and/or accepted by the City. For purposes of determining Liquidated Damages, the Contract Time shall control and may only be altered by a duly authorized Change Order.

D. Schedule Updates. Contractor shall continuously update its construction schedule.

Contractor shall submit an updated and accurate construction schedule to the City:
(1) prior to the start of construction, if there are any changes to the initial schedule; (2) with each progress payment request; and (3) whenever requested to do so by the City. The City may withhold progress payments or other amounts due under the Contract Documents if Contractor fails to submit an updated and accurate construction schedule. Upon the City’s request, Contractor shall submit any schedules or updates to the City in the native electronic format of the software used to create the schedule. Contractor shall also submit schedules showing a two-week detailed look-ahead at weekly meetings conducted with the City. The two-week look- ahead schedule shall clearly identify all staffing and other resources which in the Contractor’s judgment are needed to complete the Work within the Contract Time, and it shall clearly state the number of staff to be used on each daily segment of the Work.

E. Acceptance. Acceptance of the schedules by the City will not impose on responsibility for accuracy, for sequencing, scheduling, or progress of the Work, or compliance with the Contract Documents. Acceptance will not interfere with or relieve Contractor from Contractor’s full responsibility therefor.

F. Recovery Schedule.

1. Should any of the following conditions exist, City may require Contractor to prepare, at no extra cost to City, a plan of action and a recovery schedule for completing the Work and achieving all contractual milestones within the allotted Contract Time:
a. The Contractor's monthly progress report indicates delays that are, in the opinion of City, of sufficient magnitude that City questions the Contractor's ability to complete the Work; 495
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b. The schedule shows the Contractor to be thirty (30) or more days behind the critical path at any time during construction;
c. The Contractor desires to make changes in the logic or the planned duration of future activities of the schedule which, in the opinion of City, are major in nature.

2. The recovery schedule shall include proposed revisions to the Construction Schedule, demonstrating how Contractor intends to achieve all contractual milestones including Contract completion within the allotted Contract Time. The submittal shall include a narrative describing the actions planned by the Contractor to recover the schedule.

3. Contractor shall submit the Recovery Schedule within seven (7) Days of City’s request. If Contractor asserts that City is responsible for the delay, failure to submit the recovery schedule within seven (7) Days of City’s request, will be considered a concurrent delay event attributable to Contractor, and Contractor shall only be entitled to non- compensable adjustments to Contract Times. If Contractor is responsible for the delay, this provision will not limit or affect Contractor's liability and failure to submit the recovery schedule with seven (7) Days of City’s request may result in City withholding progress payments or other amounts due under the Contract Documents.

4. Contractor is responsible for all costs associated with the preparation and execution of the recovery schedule, including any necessary recovery actions, which may include, but are not limited to, assignment of additional labor, and/or equipment, shift or overtime work, expediting of submittals or deliveries, overlapping of activities or sequencing changes to increase activity concurrence.

Regardless of whether City directs Contractor to prepare a recovery schedule pursuant to this Section, Contractor shall promptly undertake appropriate action at no additional cost to City to recover the schedule whenever the current construction schedule shows that the Contractor will not achieve a milestone and/or complete the Work within the allotted Contract Time.

8.3 Time for Completion and Liquidated Damages
A. Time for Completion. The time for completion set forth in Article 2 of the Contract for Construction shall commence: (1) on the date stated in the Notice to Proceed, or (2) if the Notice to Proceed does not specify a commencement date, then on the date of the Notice to Proceed and shall be completed by Contractor in the time specified in the Contract Documents. The City is under no obligation to consider early completion of the Project; and the Contract completion date shall not be amended by the City’s receipt or acceptance of the Contractor’s proposed earlier completion date. Any difference in time between the Contractor’s early completion and the Contract Time shall be considered a part of the Project float. Contractor shall not be entitled to compensation, and the City will not compensate Contractor, for delays which impact early completion. Contractor shall not, under any circumstances, receive additional compensation from the City (including but not limited to indirect, general, administrative or other forms of overhead costs) for the period between the time of earlier completion proposed by the Contractor and the Contract completion date.
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B. Liquidated Damages. If the Work is not completed within the Contract Time(s), it is understood that the City will suffer damage. In accordance with Government Code section 53069.85 and Public Contract Code section 7102, being impractical and infeasible to determine the amount of actual damage, it is agreed that Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum stipulated in the Contract for each calendar day of delay until the Work is fully completed. Contractor and its surety shall be liable for any liquidated damages. Any money due or to become due the Contractor may be retained to cover liquidated damages.

C. Inclement Weather. Contractor shall abide by the City’s determination of what constitutes inclement weather. Time extensions for inclement weather shall only be granted when the Work stopped during inclement weather is on the critical path of the Project schedule. Contractor shall not be entitled to reverse liquidated damages for time extensions resulting from inclement weather.

D. Extension of Time. Contractor’s entitlement to an extension of the Contract Time is limited to a City -caused extension of the critical path, reduced by the Contractor’s concurrent delays, and established by a proper time impact analysis. Contractor shall not be charged liquidated damages because of any delays in completion of the Work due to unforeseeable causes beyond the control and without the fault or negligence of Contractor (or its Subcontractors or Suppliers). The City shall ascertain the facts and extent of delay and grant extension of time for completing the Work when, in its judgment, the facts justify such an extension. Contractor shall not be entitled to an adjustment in the Contract Times for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor.

E. Reverse Liquidated Damages. Consistent with Public Contract Code Section 7102, Contractor will be compensated for damages incurred due to unreasonable delays to the critical path for which the City is responsible. The parties agree that determining Contractor’s exact delay damages are and will continue to be impracticable and extremely difficult. As such, for each calendar day in excess of the time for completion set forth in Article 2 of the Contract for Construction, the City shall pay to the Contractor the sum stipulated in the Contract per day. Such amount shall constitute the only payment allowed for any City -caused delays and shall necessarily include all overhead, all profits, all administrative costs, all bond costs, all labor, materials, equipment and rental costs and any other costs, expenses and fees incurred or sustained as a result of such delays. Contractor shall not be entitled to reverse liquidated damages for any change in the Work in which Contractor is compensated for overhead and profit through a change in Unit Price Work or a Change Order resulting in a lump sum or allowed mark -up for the additional Work.

The amount of reverse liquidated damages shall be reduced by Contractor’s concurrent delays.

F. Force Majeure. In accordance with subparagraphs “D” and “E” above, the Contractor shall not be charged liquidated damages, and the City shall not be responsible, for any delays resulting from a Force Majeure Event. If a delay to the critical path results from a Force Majeure Event, the Contractor will be entitled to a time extension but will not receive an adjustment to the Contract Price or any other 497
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compensation. Such a non-compensable adjustment shall be Contractor’s sole and exclusive remedy for such delays.

G. No Damages for Reasonable Delay. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. In no case shall the City be liable for any costs which are borne by the Contractor in the regular course of business, including, but not limited to, home office overhead and other ongoing costs. Damages caused by unreasonable City delay shall be based on actual costs only, no proportions or formulas shall be used to calculate any delay damages.

H. Procedure for Time Extensions and Delay Damages. Contractor shall not be entitled to any extension of time or any reverse liquidated damages unless Contractor properly notices the delay and adjustment to compensation and requests a Change Order in accordance with Article 9.1 Change Orders and Time Extensions.

Contractor’s failure to timely and fully comply with the Change Order procedures in the Contract Documents shall constitute a waiver of Contractor’s right to a time extension or reverse liquidated damages.

8.4 Contractor’s Responsibility for Work.

A. Until the acceptance of the Work by the Engineer as evidenced in writing, it shall be under the charge and care of the Contractor. The Contractor shall take every necessary precaution against injury or damage to any part thereof by the action of the elements or from any cause whether arising from the execution or non-execution of the Work. The Contractor shall rebuild, repair, restore and make good at its own expense all injuries or damages to any portion of the Work before its completion and acceptance. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City will pay for repair or restoration to damaged Work in excess of 5% of the total Bid.

8.5 Occupancy.

A. The City reserves the right to occupy or utilize any portion of the Work at any time before completion, and such occupancy or use shall not constitute acceptance of any part of Work covered by this Contract. This use shall not relieve the Contractor of its responsibilities under the Contract.

8.6 Securities for Money Withheld
A. Pursuant to section 22300 of the Public Contract Code of the State of California, Contractor may request the City to make retention payments directly to an escrow agent or may substitute securities for any money withheld by the City to ensure performance under the contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City or with a state or federally chartered bank as the escrow agent who shall return such securities to Contractor upon satisfactory completion of the contract. Deposit of securities with an escrow agent shall be subject to a written agreement substantially in the form provided in section 22300 of the Public Contract Code. 498
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8.7 The City’s Right to Suspend/Terminate the Contract
A. Suspension of Work by the City

1. The City may, at its sole option, decide to suspend at any time the performance of all or any portion of the Work by notice in writing to Contractor. Such notice of suspension of Work will designate the amount and type of plant, labor, and equipment to be committed to the Project during the period of suspension.

Contractor shall use its best efforts to utilize its plant, labor, and equipment in such a manner as to minimize costs associated with suspension.

2. Upon receipt of any such notice, Contractor shall, unless the notice requires otherwise:
a. Immediately discontinue Work on the date and to the extent specified in the notice; b. Place no further orders or subcontracts for material, services, or facilities with respect to suspended Work other than to the extent required in the notice; c. Promptly make every reasonable effort to obtain suspension upon terms satisfactory to the City’s Representative of all orders, subcontracts, and rental agreements to the extent they relate to performance of Work suspended; and
d. Continue to protect and maintain the Work including those portions on which Work has been suspended.

3. Except as provided by this Article, as full and complete compensation for such suspension, Contractor shall be granted an adjustment in the Contract Price based on a negotiated daily rate that reflects the Contractor’s actual costs associated with the demobilized condition of the Site and an extension of the Contract Times equal to the number of days performance of Work is suspended; provided, however, that no adjustment of Contract Price or extension of Contract Times shall be granted if the suspension results from Contractor's non-compliance with the requirements of the Contract.

B. Termination for Cause by the City:

1. In the sole estimation of the City, if the Contractor refuses or fails to prosecute the Work or any separable part thereof with such diligence as will insure its completion within the time specified by the Contract Documents, or any extension thereof, or fails to complete such Work within such time, or if the Contractor should be adjudged a bankrupt, or if it should make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of its insolvency, or the Contractor or any of its subcontractors should violate any of the provisions of this Contract, the City may serve written notice upon the Contractor and its surety of the City's intention to terminate this Contract. This notice of intent to terminate shall contain the reasons for such intention to terminate this Contract, and a statement to the effect that the Contractor's right to perform this Contract shall cease and terminate upon the expiration of ten (10) Days unless such violations have ceased and arrangements satisfactory to the City have been made for correction of said violations.
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2. After expiration of the ten (10) Day period, the City may terminate the Contract by providing a Notice of Termination to the Contractor. The City may take over and complete the Work by any method it may deem appropriate, including enforcement of the Project performance bond. Contractor and its surety shall be liable to the City for any excess costs or other damages incurred by the City to complete the Work. If the City takes over the Work, the City may, without liability for so doing, take possession of and utilize in completing the Work such materials, appliances, plant, and other property belonging to the Contractor as may be on the Site.

3. Upon termination, Contractor shall not be entitled to receive any further payment from the City, except for Work which was duly performed prior to the effective date of the Notice of Termination. Contractor shall submit an invoice for final payment within thirty (30) Days of the effective date of the Notice of Termination. The City may withhold from final payment up to 150% of any disputed amounts, including any amounts which may be necessary to repair defective Work, complete unfinished Work, or are otherwise occasioned by Contractor’s failure to perform its duties under the Contract.

C. Termination for Convenience by the City:

1. The City may terminate performance of the Work called for by the Contract Documents in whole or, from time to time, in part, upon ten (10) Days written notice if the City determines that a termination is in the City's interest.

2. The Contractor shall terminate all or any part of the Work upon delivery to the Contractor of a Notice of Termination specifying that the termination is for the convenience of the City, the extent of termination, and the effective date of such termination.

3. After receipt of Notice of Termination, and except as directed by the City's Representative, the Contractor shall, regardless of any delay in determining or adjusting any amounts due under this termination for convenience clause, immediately proceed with the following obligations:
a. Stop Work as specified in the Notice.
b. Complete any Work specified in the Notice of Termination in a least cost/shortest time manner while still maintaining the quality called for under the Contract Documents. c. Leave the property upon which the Contractor was working and upon which the facility (or facilities) forming the basis of the Contract Document is situated in a safe and sanitary manner such that it does not pose any threat to the public health or safety. d. Terminate all subcontracts to the extent that they relate to the portions of the Work terminated.
e. Place no further subcontracts or orders, except as necessary to complete the continued portion of the Contract.
f. Submit to the City's Representative, within ten (10) Days from the effective date of the Notice of Termination, all of the usual documentation called for by the Contract Documents 500
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to substantiate all costs incurred by the Contractor for labor, materials and equipment through the effective date of the Notice of Termination. Any documentation substantiating costs incurred by the Contractor solely as a result of the City's exercise of its right to terminate this Contract pursuant to this clause, which costs the contractor is authorized under the Contract documents to incur, shall: (1) be submitted to and received by the Engineer no later than 30 Days after the effective date of the Notice of Termination; (2) describe the costs incurred with particularity; and (3) be conspicuously identified as “Termination Costs occasioned by the City's Termination for Convenience.” If the City rejects any costs, Contractor shall be deemed to waive the rejected costs unless Contractor files a Claim within thirty (30) Days of the rejection pursuant to Article 9.2. g. Contractor shall be entitled to receive only the amounts payable under this Article, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits. The provisions in this Article are in addition to and not in limitation of any other rights or remedies available to the City.

4. Termination of the Contract shall not relieve surety of its obligation for any just claims arising out of or relating to the Work performed.

5. Notwithstanding any other provision of this Article, when immediate action is necessary to protect life and safety or to reduce significant exposure or liability, the City may immediately order Contractor to cease Work on the Project until such safety or liability issues are addressed to the satisfaction of the City or the Contract is terminated.

6. If the City terminates Contractor for cause, and if it is later determined that the termination was wrongful, such default termination shall automatically be converted to and treated as a termination for convenience. In such event, Contractor shall be entitled to receive only the amounts payable under this section, and Contractor specifically waives any claim for any other amounts or damages, including, but not limited to, any claim for consequential damages or lost profits.

8.8 Completion and Acceptance of Work
A. Final Inspection. Upon written notice from Contractor that the entire Work is complete, the Engineer will promptly make a final inspection with the City and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies.

B. Final Acceptance. The acceptance of the Work on behalf of the City will be made by the Engineer. Such acceptance by the City shall not constitute a waiver of defects. After Contractor has, in the opinion of the Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, Record Documents, and other documents required by the 501
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Contract Documents, the City shall execute a Notice of Completion, constituting final acceptance and completion of the Project, except as may be expressly noted.

8.9 Warranty and Guaranty of Work.

A. Contractor hereby warrants that materials and Work shall be completed in conformance with the Contract Documents and that the materials and Work provided will fulfill the requirements of this Warranty. Contractor hereby agrees to repair or replace, at the discretion of the City, any or all Work that may prove to be defective in its workmanship, materials furnished, methods of installation or fail to conform to the Contract Document requirements together with any other Work which may be damaged or displaced by such defect(s) within a period of one (1) year (or as otherwise indicated in the Contract Documents or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) from the date of the Notice of Completion of the Project without any expense whatever to the City, ordinary wear and tear and unusual abuse and neglect excepted. Contractor shall be required to promptly repair or replace defective equipment or materials, at Contractor’s option. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor.

B. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected Work. The reinstatement of the one (1) year warranty shall apply only to that portion of work that was corrected. Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. In the event of Contractor’s failure to comply with the above-mentioned conditions within ten (10) Days after being notified in writing of required repairs, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non- conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder immediately upon demand.

C. In addition to the warranty set forth in this Article, Contractor shall obtain for the City all warranties that would be given in normal commercial practice and assign to the City any and all manufacturer’s or installer’s warranties for equipment or materials not manufactured by Contractor and provided as part of the Work, to the extent that such third-party warranties are assignable and extend beyond the warranty period set forth in this Article. Contractor shall furnish the City with all warranty and guarantee documents prior to final acceptance of the Project by the City as required.

D. When specifically indicated in the Contract Documents or when directed by the Engineer, the City may furnish materials or products to the Contractor for installation.

In the event any act or failure to act by Contractor shall cause a warranty applicable to any materials or products purchased by the City for installation by the Contractor to be voided or reduced, Contractor shall indemnify the City from and against any cost, expense, or other liability arising therefrom, and shall be responsible to the City 502
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for the cost of any repairs, replacement or other costs that would have been covered by the warranty but for such act or failure to act by Contractor.

E. The Contractor shall remedy at its expense any damage to City-owned or controlled real or personal property.

F. The City shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage. The Contractor shall within ten (10) Days after being notified commence and perform with due diligence all necessary Work. If the Contractor fails to promptly remedy any defect or damage, the City shall have the right to replace, repair or otherwise remedy the defect, or damage at the Contractor’s expense.

G. In the event of any emergency constituting an immediate hazard to health, safety, property, or licensees, when caused by Work of the Contractor not in accordance with the Contract requirements, the City may undertake at Contractor’s expense, and without prior notice, all Work necessary to correct such condition.

H. Acceptance of Defective Work.

1. If, instead of requiring correction or removal and replacement of defective Work, the City prefers to accept it, the City may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to the City’s evaluation of and determination to accept such defective Work and for the diminished value of the Work. If any acceptance of Defective Work occurs prior to release of the Project retention, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and the City shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work and all costs incurred by the City. If the acceptance of defective occurs after release of the Project retention, an appropriate amount will be paid by Contractor to the City.

I. The City May Correct Defective Work

1. If Contractor fails within a reasonable time after written notice from the City to correct Defective Work, or to remove and replace rejected Work as required by the City, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, the City may, after seven (7) Days written notice to Contractor, correct, or remedy any such deficiency.

2. In connection with such corrective or remedial action, the City may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor’s services related thereto, take possession of Contractor’s tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which the City has paid Contractor but which are stored elsewhere. Contractor shall allow the City, and the agents, employees, other contractors, and consultants of each of 503
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them, access to the Site to enable the City to exercise the rights and remedies to correct the Defective Work.

3. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by the City correcting the Defective Work will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and the City shall be entitled to an appropriate decrease in the Contract Price. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of defective Work.

4. If the Change Order is executed after all payments under the Contract have been paid by the City and the Project Retention is held in an escrow account as permitted by the Contract Documents, Contractor will promptly alert the escrow holder, in writing, of the amount of Retention to be paid to the City. If the Change Order is executed after release of the Project retention, an appropriate amount will be paid by Contractor to the City. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to the City correcting Defective Work.

J. Nothing in the warranty or in the Contract Documents shall be construed to limit the rights and remedies available to the City at law or in equity, including, but not limited to, Code of Civil Procedure section 337.15.

ARTICLE 9 -CHANGE ORDERS; DISPUTE RESOLUTION

9.1 Change Orders and Time Extensions
All changes to the Contract, including compensation increases and time extensions, shall be through a written Change Order in accordance with this Article. The City, without invalidating the Contract, may order changes in the Work consisting of additions, deletions or other revisions, and Contractor’s compensation and the time for completion shall be adjusted accordingly. Whenever any change is made as provided for herein, such change shall be considered and treated as though originally included in the Contract, and shall be subject to all terms, conditions, and provisions of the original Contract. Contractor shall not be entitled to claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease or omission of any item or portion of Work to be done. No dispute, disagreement, or failure of the parties to reach agreement on the terms of the Change Order shall relieve the Contractor from the obligation to proceed with performance of the Work, including Additional Work, promptly and expeditiously.

Any alterations, extensions of time, Additional Work, or any other changes may be made without securing consent of the Contractor’s surety or sureties.

A. Change in Contract Procedures

1. City Directive. The City may direct changes in the Work by delivering a written directive. To the extent the work directive results in a change to compensation or time, Contractor must timely request a Change Order and comply with all Change 504
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Order procedures in accordance with this Article. Notwithstanding issuance of a work directive, Contractor’s failure to timely request a Change Order shall constitute a waiver by Contractor of any adjustment to compensation or time extension for Work performed under the directive. The City shall not be liable to Contractor for Work performed or omitted by Contractor in reliance on verbal orders.

2. Contractor’s Notice of Change/Delay . If Contractor intends to initiate a Change Order Request, then Contractor shall provide the City with written notice of the underlying facts and circumstances that gave rise to the proposed change within the following times:
a. If due to unknown subsurface or latent physical conditions, within three (3) Days from the discovery date or prior to the alterations of the conditions, whichever is earlier. b. If due to a Force Majeure Event, as soon as reasonably practicable under the conditions, which shall be no longer than three (3) Days from the date the Contractor discovers that the Force Majeure Event gives rise to a change, unless that the conditions are such that notice within three (3) Days is not possible or practicable. c. If due to any other matter that may involve an adjustment to the Contract Time or the Contract Price, within seven (7) days from the discovery date.

To be considered valid and complete, the notice of change/delay shall include a general statement of the circumstances giving rise to the notice of change/delay and a reasonable order of magnitude estimate of the additional costs and/or time.

If the circumstances give rise to both a cost adjustment and time extension, Contractor shall submit the notice of change and notice of delay concurrently.

3. Request for Change in Compensation and/or Extension of Time. Contractor shall submit a Change Order Request for any adjustment to Contractor’s compensation and/or any extension of time. The Change Order Request shall be made prior to incurring any expense and within fourteen (14) Days from either Contractor’s notice of change/delay or the City’s directive ordering the change. The Change Order Request shall include all of the following information (unless inapplicable to the change):
a. A detailed description of the circumstances giving rise to the request; b. A complete itemized cost proposal, including itemized pricing for first tier Subcontractors; c. Supporting documentation for all costs;
d. A time impact analysis showing the impact of the delay to the critical path to completion; e. If any added costs or information cannot be determined at the time of the Change Order Request, the reason the costs or information cannot be determined at the time; and f. Certification to the accuracy of the Change Order Request under penalty of perjury. 505
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The time impact analysis shall be in the critical path method format and shall show the sequencing of all critical and non-critical new activities and/or activity revisions affected by the delay, with logic ties to all affected existing activities noted on the schedule.

The City may demand, and Contractor shall provide, any additional information supporting the Change Order Request, including but not limited to native electronic format version of schedules and time impact analyses. Contractor shall provide the requested additional information within five (5) Days of the request.

For any costs or information that cannot be determined at the time Contractor submits the Change Order Request, Contractor shall submit to the City notice of the costs or information and all supporting documentation within five (5) Days of when the costs or other information become subject to determination.

4. City’s Final Decision on Change Order; Ordered Changes . If the City denies the Change Order Request or disagrees with the proposal submitted by Contractor, it will notify the Contractor, and the City will provide its opinion of the appropriate price and/or time extension. If no agreement can be reached, the City shall have the right to order the Work performed on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City shall also have the right to order changes in the Work to be performed promptly by the Contractor on a time and materials basis or to issue a unilateral Change Order setting forth the City’s determination of the reasonable additions or savings in costs and time attributable to the extra or deleted work. The City’s determination shall become final and binding if the Contractor fails to submit a Claim in writing to the City within fourteen (14) Days of the issuance of the unilateral Change Order, disputing the terms of the unilateral Change Order and providing such supporting documentation for its position as the City may reasonably require.

5. Contractor’s Waiver of Further Relief. CONTRACTOR’S FAILURE TO PROVIDE

A COMPLETE AND TIMELY NOTICE OF CHANGE/DELAY AND/OR CHANGE

ORDER REQUEST, OR TO COMPLY WITH ANY OTHER REQUIREMENT OF

THIS ARTICLE, SHALL CONSTITUTE A WAIVER BY CONTRACTOR OF THE

RIGHT TO A CONTRACT ADJUSTMENT ON ACCOUNT OF SUCH

CIRCUMSTANCES AND A WAIVER OF ANY RIGHT TO FURTHER RECOURSE

OR RECOVERY BY REASON OF OR RELATED TO SUCH CHANGE BY

MEANS OF THE CLAIMS DISPUTE RESOLUTION PROCESS OR BY ANY

OTHER LEGAL PROCESS OTHERWISE PROVIDED FOR UNDER
APPLICABLE LAWS.

Contractor recognizes and acknowledges that timely submission of a formal written notice of change/delay and Change Order Request, whether or not the circumstances of the change may be known to the City or available to the City through other means, is not a mere formality but is of crucial importance to the ability of the City to promptly identify, prioritize, evaluate and mitigate the potential effects of changes. Any form of informal notice, whether verbal or written 506
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(including, without limitation, statements in requests for information, statements in Submittals, statements at any job meeting or entries on monthly reports, daily logs or job meeting minutes), that does not strictly comply with the formal requirements of this Article, shall accordingly be insufficient.

6. Change Order Format
a. A Change Order signed by the Contractor indicates the Contractor's agreement therewith, including any adjustment in compensation or extension of time, and the full and final settlement of all costs (direct, indirect and overhead) related to the Work authorized by the Change Order.
b. The City may designate the forms to be used for notices, requests, and Change Orders.

If so designated, Contractor may only use such forms. Contractor shall not reserve a right to assert impact costs, extended job site costs, extended overhead, constructive acceleration and/or actual acceleration beyond what is stated in the Change Order. No Claims shall be allowed for impact, extended overhead costs, constructive acceleration and/or actual acceleration due to a multiplicity of changes and/or clarifications. The Contractor may not change or modify the City’s Change Order form in an attempt to reserve additional rights.

B. Determining Adjustments to Compensation.

1. Limitation on Costs. Contractor shall not be entitled to any compensation for Work subject to a Change Order except as expressly set forth in this Article. The mark- up added in instances of Additional Work shall constitute the entire amount of profit, any mark-ups, any field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such Work.

2. Unit Price Change Orders . When the actual quantity of a Unit Price Work item varies from the Bid Schedule, compensation for the change in quantity will be calculated by multiplying the actual quantity by the unit price. This calculation may result in either an additive or deductive Change Order. Bid items included on the Bid Schedule may be deducted from the Work in their entirety without any negotiated extra costs. Because Unit Price Work includes overhead and profit as determined by Contractor at the time of its Bid submission, no mark up or deduction for overhead and profit will be allowed.

3. Lump Sum Change Orders. Whenever possible, any changes affecting compensation shall be in a lump sum mutually agreed by the Contractor and the City.

4. Time and Materials Change Orders. The City may direct the Contractor to proceed with the Additional Work with payment to be made on the basis of actual cost of the labor and materials required to complete the Additional Work. If the Project is federally funded, a time and materials Change Order shall only be issued after a determination that no other Change Order is suitable and the Change Order shall include a ceiling price that the Contractor exceeds at its own risk. 507
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5. Federally Funded Projects. For any change in price to the Contract, general and administrative expenses shall be negotiated and must conform to the cost principles set forth under at 2 C.F.R. Part 200, subpart E, and profit shall be negotiated as a separate element of the cost. To establish a fair and reasonable profit, consideration must be given to the complexity of the Additional Work to be performed, the risk borne by the Contractor, the Contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.

6. Allowed Costs. Estimates for lump sum quotations and accounting for time- and- material work shall be limited to direct expenditures necessitated specifically by the change and shall be segregated as follows:
a. Labor. The costs of labor will be the actual cost for wages prevailing locally for each craft or type of worker at the time the Additional Work is done, plus employer payments of payroll taxes and insurance, health and welfare, pension, vacation, apprenticeship funds, and other direct costs resulting from federal, state or local laws, as well as assessment or benefits required by lawful collective bargaining agreements. The use of a labor classification which would increase the Additional Work cost will not be permitted unless the Contractor establishes the necessity for such additional costs. Labor costs for equipment operators and helpers shall be reported only when such costs are not included in the invoice for equipment rental.
b. Materials. The cost of materials reported shall be at the lowest current price at which such materials are locally available in the quantities involved, plus sales tax, freight and delivery. Materials costs shall be based upon supplier or manufacturer’s invoice. c. Tool and Equipment Use. Regardless of ownership, the rates to be used in determining equipment use shall not exceed listed rates prevailing locally at equipment rental agencies, or distributors, at the time the work is performed. The Contractor shall furnish cost data supporting the establishment of the rental rate. The rental rate to be applied for use of each items of equipment shall be the rate resulting in the least total cost to the City for the total period of use. The City shall the make the final determination as to an equitable rental rate for the equipment. No payment will be made for the use of small tools, which have a replacement value of $1,000 or less. (i) The rental time to be paid for equipment shall be the time the equipment is in productive operation on the Additional Work being performed. Rental time will not be allowed while equipment is inoperative due to breakdowns. (ii) All equipment shall, in the opinion of the City, be in good working condition and suitable for the purpose for which the equipment is to be used. Equipment with no direct power unit shall be powered by a unit of at least the minimum rating recommended by the manufacturer.
(iii) Before construction equipment is used on any Additional Work, the Contractor shall plainly stencil or stamp an identifying number thereon at a conspicuous location, and shall furnish to the City, in duplicate, a description of the equipment and its identifying number.
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(iv) When hourly rates are listed, any part of an hour less than 30 minutes of operation shall be considered to be 1/2- hour of operation, and any part of an hour greater than 30 minutes will be considered one hour of operation. When daily rates are listed, any part of a day less than 4 hours operation shall be considered to be 1/2- day of operation.
d. Allowed Mark-up. The allowed mark -up for any and all overhead (including supervision and home and field office costs) and profit on work added to the Contract shall be determined in accordance with the following provisions:
(i) “Net Cost” is defined as the actual costs of labor, materials and tools and equipment only, excluding overhead and profit. The costs of applicable insurance and bond premium will be reimbursed to the Contractor and Subcontractors at cost only, without mark-up. Contractor shall provide the City with documentation of the costs, including but not limited to payroll records, invoices, and such other information as the City may reasonably request.
(ii) For Work performed by the Contractor’s forces the allowed mark -up shall not exceed fifteen (15%) percent of labor costs, ten percent (10%) of material costs, and ten percent (10%) of the cost of tools and equipment use. (iii) For Work performed by a Subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the Subcontractor’s Net Cost of the Work to which the Contractor may add up to five percent (5%) of the Subcontractor’s Net Cost.
(iv) For Work performed by a sub -subcontractor, the added cost for overhead and profit shall not exceed fifteen percent (15%) of the sub -subcontractor’s Net Cost for Work to which the Subcontractor and Contractor may each add up to an additional five percent (5%) of the Net Cost of the lower tier subcontractor. (v) No additional mark-up will be allowed for lower tier subcontractors, and in no case shall the added cost for overhead and profit payable by the City exceed twenty - five percent (25%) of the Net Cost as defined herein, of the party that performs the Work.
(vi) Calculation of the mark-up will be subject to the limitations above and to calculation as further detailed in (b)(B)(5) above.
e. Documentation of Time-and-Material Costs.
(i) T&M Daily Sheets. Contractor must submit timesheets, materials invoices, records of equipment hours, and records of rental equipment hours to the City’s for an approval signature each day that Work is performed on a time-and-material basis.

The Engineer’s signature on time sheets only serves as verification that the Work was performed and is not indicative of the City’s agreement to Contractor’s entitlement to the cost.
(ii) T&M Summary Sheet. Contractor shall submit a T&M Summary Sheet, which shall include total actual costs, within five (5) Days following completion of Additional Work on a time-and-material basis. Contractor’s total actual cost shall be 509
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presented in a summary table in an electronic spreadsheet file by labor, material, equipment, and any other costs, along with documentation supporting the costs.

Contractor’s failure to submit the T&M Summary Sheet within five (5) Days of completion of the Additional Work will result in Contractor’s waiver for any reimbursement of any costs associated with the Additional Work. f. Excluded Costs. The following costs or any other home or field office overhead costs, all of which are to be considered administrative costs covered by the Contractor’s mark -up, shall not be allowed costs and shall not be included in any lump sum proposals or time- and-materials invoices:
(i) Overhead Cost . Payroll costs and other compensation of Contractor’s officers, executives, principals, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, timekeepers, clerks, and other personnel employed by Contractor whether at the Site or in Contractor’s principal office or any branch office, material yard, or shop for general administration of the Work;
(ii) Office Expenses. Expenses of Contractor’s principal and branch offices; (iii) Capital Expenses. Any part of Contractor’s capital expenses, including interest on Contractor’s capital employed for the Additional Work and charges against Contractor for delinquent payments;
(iv) Negligence. Costs due to the negligence of Contractor or any Subcontractor or Supplier, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including without limitation the correction of Defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property;
(v) Small Tools. Cost of small tools valued at less than $1,000 and that remain the property of Contractor;
(vi) Administrative Costs. Costs associated with the preparation of Change Orders (whether or not ultimately authorized), cost estimates, or the preparation or filing of Claims;
(vii) Anticipated Lost Profits. Expenses of Contractor associated with anticipated lost profits or lost revenues, lost income or earnings, lost interest on earnings, or unpaid retention;
(viii) Home Office Overhead . Costs derived from the computation of a “home office overhead” rate by application of the Eichleay, Allegheny , burden fluctuation, or other similar methods;
(ix) Special Consultants and Attorneys . Costs of special consultants or attorneys, whether or not in the direct employ of Contractor, employed for services specifically related to the resolution of a Claim, dispute, or other matter arising out of or relating to the performance of the Additional Work.
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(x) Other. Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in the Contract Documents; including but not limited to: submittals, drawings, field drawings, shop drawings, including submissions of drawings; field inspection; general superintendence; computer services; reproduction services; salaries of project engineer, superintendent, timekeeper, storekeeper, and secretaries; janitorial services; small tools, incidentals and consumables; temporary on-site facilities (offices, telephones, high speed internet access, plumbing, electrical power, lighting; platforms, fencing, water); surveying; estimating; protection of work; handling and disposal fees; final cleanup; other incidental work; related warranties; insurance and bond premiums. (xi) Compliance with Federal Cost Principles . If the Project is federally funded, any costs that are not allowable, reasonable and allocable to the Project, under generally accepted accounting principles and the applicable federal requirements.

9.2 Procedure for Resolving Claims.

Contractor shall timely comply with any and all requirement of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, including but not limited to all requirements of Article 9.1, as a prerequisite to filing any claim governed by this Article. The failure to timely submit a notice of delay or notice of change, or to timely request a change to the time for completion or Contractor’s compensation, or to timely provide any other notice or request required herein shall constitute a waiver of the right to further pursue the claim under the Contract or at law.

A. Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non- binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Article is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code.

This Article shall be construed to be consistent with all applicable law, including but not limited to these statutes.

B. Claims. For purposes of this Article, “Claim” means a separate demand by the Contractor for:

1. An adjustment to the time for completion including, without limitation, for relief from damages or penalties for delay assessed by the City;

2. Payment by the City of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, payment for which is not otherwise expressly provided or to which the Contractor is not otherwise entitled; or

3. An amount the payment of which is disputed by the City.

A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a Change Order, or otherwise failed to follow any procedures contained in the Contract Documents.
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C. Filing Claims. Claims governed by this Article may not be filed unless and until the Contractor completes any and all requirements of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, and Contractor’s request for a change has been denied in whole or in part.

Claims governed by this Article must be filed no later than thirty (30) Days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page the following words in 16 point capital font: “THIS IS A CLAIM.” The Claim shall include the all information and documents necessary to substantiate the Claim, including but not limited to those identified below. Nothing in this Article is intended to extend the time limit or supersede notice requirements otherwise provided by Contract Documents. Failure to follow such contractual requirements shall bar any Claims or subsequent proceedings for compensation or payment thereon.

D. Documentation. The Contractor shall submit all Claims in the following format:

1. Summary description of Claim including basis of entitlement, merit and amount of time or money requested, with specific reference to the Contract Document provisions pursuant to which the Claim is made

2. List of documents relating to Claim:
a. Specifications
b. Drawings
c. Clarifications (Requests for Information)
d. Schedules
e. Other

3. Chronology of events and correspondence

4. Narrative analysis of Claim merit

5. Analysis of Claim cost, including calculations and supporting documents

6. Time impact analysis in the form required by the Contract Documents or, if the Contract Documents do not require a particular format, CPM format, if an adjustment of the Contract Time is requested
E. City’s Response. Upon receipt of a Claim pursuant to this Article, the City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 Days, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 Days after the City issues its written statement.
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1. If the City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the City’s governing body does not meet within the 45 Days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, the City shall have up to three (3) Days following the next duly publicly noticed meeting of the City’s governing body after the 45- Day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.

2. Within 30 Days of receipt of a Claim, the City may request in writing additional documentation supporting the Claim or relating to defenses or Claims the City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the City and the Contractor. The City’s written response to the Claim, as further documented, shall be submitted to the Contractor within 30 Days (if the Claim is less than $50,000, within 15 Days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.

F. Meet and Confer. If the Contractor disputes the City’s written response, or the City fails to respond within the time prescribed, the Contractor may so notify the City, in writing, either within 15 Days of receipt of the City’s response or within 15 Days of the City’s failure to respond within the time prescribed, respectively, and demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, the City shall schedule a meet and confer conference within 30 Days for settlement of the dispute.

G. Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, the City shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 Days after the City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with the City and the Contractor sharing the associated costs equally. The public entity and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the parties agree to select a mediator at a later time.

1. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the Claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.

2. For purposes of this Article, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through 513
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negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this Article.

3. Unless otherwise agreed to by the City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.

4. The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim arises after mediation is completed.

H. Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a Claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation.

For purposes of those provisions, the running of the period of time within which a Claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference.

I. Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:

1. Within 60 Days, but no earlier than 30 Days, following the filing or responsive pleadings, the court shall submit the matter to non -binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of this Contract. The mediation process shall provide for the selection within 15 Days by both parties of a disinterested third person as mediator, shall be commenced within 30 Days of the submittal, and shall be concluded within 15 Days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.

2. If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.

J. Government Code Claim Procedures.
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1. This Article does not apply to tort claims and nothing in this Article is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.

2. In addition to any and all requirements of the Contract Documents pertaining to notices of and requests for adjustment to the Contract Time, Contract Price, or compensation or payment for Additional Work, disputed Work, construction claims and/or changed conditions, the Contractor must comply with the claim procedures set forth in Government Code Section 900, et seq. prior to filing any lawsuit against the City.

3. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time or Contract Price for Additional Work, disputed Work, construction claims, and/or changed conditions have been followed by Contractor. If Contractor does not comply with the Government Code claim procedure or the prerequisite contractual requirements, Contractor may not file any action against the City.

4. A Government Code claim must be filed no earlier than the date the Work is completed or the date the Contractor last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to Contractor or that should reasonably by known to Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.

K. Non-Waiver. The City’s failure to respond to a Claim from the Contractor within the time periods described in this Article or to otherwise meet the time requirements of this Article shall result in the Claim being deemed rejected in its entirety, and shall not constitute a waiver of any rights under this Article.

ARTICLE 10 - MEASUREMENT; PAYMENT

10.1 Cost Breakdown.

A. Lump Sum Work.

1. Contractor shall furnish on forms approved by the City within ten (10) Days of the Notice to Proceed, a schedule of values allocating the entire Contract Price to the various portions of the Work and prepared in such a form and supported by such data to substantiate its accuracy as the Engineer may require. This schedule of values, unless objected to by the Engineer, shall be used as a basis for reviewing the Contractor’s applications for payment. Contractor shall submit the schedule of values prior to submitting its first application for payment, and the City will not issue any payment until it receives and approves the schedule of values.

B. Unit Price Work.
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1. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work multiplied by the estimated quantity of each item as indicated in the Contract. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor’s overhead and or profit for each separately identified item.

2. Unless otherwise specified, payment will be based on the actual quantities of Work as verified and approved by the Engineer, based on the price per unit as set forth in the Bid.

3. The City or Contractor may initiate a Change Order or Change Order Request to adjust the Contract Price in accordance with Contractor Documents based on actual quantities of Unit Price Work. The City or Contractor may make a claim for an adjustment in the Unit Price in accordance with the Contract Documents if:
a. the quantity of any item of Unit Price Work performed by Contractor differs by twenty-five percent (25%) or more from the estimated quantity of such item indicated in the Contract; and
b. there is no corresponding adjustment with respect to any other item of Work; and c. Contractor believes that Contractor is entitled to an increase in unit price as a result of having incurred additional expense or the City believes that the City is entitled to a decrease in unit price and the parties are unable to agree as to the amount of any such increase or decrease.

10.2 Progress Estimates and Payment.

A. By the tenth (10th) Day of the following calendar month, Contractor shall submit to Engineer a payment request which shall set forth in detail the value of the Work done for the period beginning with the date Work was first commenced and ending on the end of the calendar month for which the payment request is prepared. Contractor shall include an adjusted list of actual quantities, verified by the Engineer, for unit price items listed, if any, in the Bid. Contractor shall include any amount earned for authorized Additional Work. Contractor shall certify under penalty of perjury, that all cost breakdowns and periodic estimates accurately reflect the Work on the Project.

B. From the total thus computed, a deduction shall be made in the amount of five percent (5%) for retention, except where the City has adopted a finding that the Work done under the Contract is substantially complex, and then the amount withheld as retention shall be the percentage specified in the Notice Inviting Bids. From the remainder a further deduction may be made in accordance with Section C below.

The amount computed, less the amount withheld for retention and any amounts withheld as set forth below, shall be the amount of the Contractor’s payment request. 516
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C. The City may withhold a sufficient amount or amounts of any payment or payments otherwise due to Contractor, as in its judgment may be necessary to cover:

1. Payments which may be past due and payable for just claims against Contractor or any Subcontractors for labor or materials furnished in and about the performance of work on the Project under this Contract.

2. Defective work not remedied.

3. Failure of Contractor to make proper payments to his Subcontractor or for material or labor.

4. Completion of the Contract if there is a reasonable doubt that the Work can be completed for balance then unpaid.

5. Damage to another contractor or a third party.

6. Amounts which may be due the Count for claims against Contractor.

7. Failure of Contractor to keep the Record Drawings up to date.

8. Failure to provide update on construction schedule as required herein.

9. Site cleanup.

10. Failure to comply with Contract Documents.

11. Liquidated damages.

12. Legally permitted penalties.

D. The City may apply such withheld amount or amounts to payment of such claims or obligations at its discretion with the exception of subsections (C)(1), (3), and (5) of this Article, which must be retained or applied in accordance with applicable law. In so doing, the City shall be deemed the agent of Contractor and any payment so made by the City shall be considered as a payment made under contract by the City to Contractor and the City shall not be liable to Contractor for such payments made in good faith. Such payments may be made without prior judicial determination of claim or obligations. The City will render Contractor a proper accounting of such funds disbursed on behalf of Contractor.

E. Upon receipt, the Engineer shall review the payment request to determine whether it is undisputed and suitable for payment. If the payment request is determined to be unsuitable for payment, it shall be returned to Contractor as soon as practicable but not later than seven (7) Days after receipt, accompanied by a document setting forth in writing the reasons why the payment request is not proper. The City shall make the progress payment within 30 Days after the receipt of an undisputed and properly submitted payment request from Contractor, provided that a release of liens and claims has been received from the Contractor pursuant to Civil Code section 8132. The number of days available to the City to make a payment without incurring 517
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interest pursuant to this paragraph shall be reduced by the number of Days by which the Engineer exceeds the seven (7) Day requirement.

F. A payment request shall be considered properly executed if funds are available for payment of the payment request and payment is not delayed due to an audit inquiry by the financial officer of the City.

G. The City shall have the right to adjust any estimate of quantity and to subsequently correct any error made in any estimate for payment.

10.3 Final Acceptance and Payment
A. Following the City’s acceptance of the Work, the Contractor shall submit to the City a written statement of the final quantities of unit price items for inclusion in the final payment request. The City shall have the right to adjust any estimate of quantity and to correct any error made in any estimate for payment.

B. When the Work has been accepted there shall be paid to Contractor a sum equal to the Contract Price less any amounts previously paid Contractor and less any amounts withheld by the City from Contractor under the terms of the Contract. The final five percent (5%), or the percentage specified in the Notice Inviting Bids where the City has adopted a finding of substantially complete, shall not become due and payable until as required by Public Contract Code section 7107. If the Contractor has placed securities with the City as described herein, the Contractor shall be paid a sum equal to one hundred percent (100%) of the Contract Price less any amounts due the City under the terms of the Contract.

C. Unless Contractor advises the City in writing prior to acceptance of the final five percent (5%) or the percentage specified in the Notice Inviting Bids where the City has adopted a finding of completion, or the return of securities held as described herein, said acceptance shall operate as a release to the City of all claims and all liability to Contractor for all things done or furnished in connection with this Work and for every act of negligence of the City and for all other claims relating to or arising out of this Work. If Contractor advises the City in writing prior to acceptance of final payment or return of the securities that there is a dispute regarding the amount due the Contractor, the City may pay the undisputed amount contingent upon the Contractor furnishing a release of all undisputed claims against the City with the disputed claims in stated amounts being specifically excluded by Contractor from the operation of the release. No payments, however, final or otherwise, shall operate to release Contractor or its sureties from the Faithful Performance Bond, Labor and Material Payment Bond, or from any other obligation under this Contract.

D. In case of suspension of the Contract any unpaid balance shall be and become the sole and absolute property of the City to the extent necessary to repay the City any excess in the cost of the Work above the Contract Price.

E. Final payment shall be made no later than 60 Days after the date of acceptance of the Work by the City or the date of occupation, beneficial use and enjoyment of the Work by the City including any operation only for testing, start-up or commissioning accompanied by cessation of labor on the Work, provided that a release of liens and 518
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claims has been received from the Contractor pursuant to Civil Code section 8136.

In the event of a dispute between the City and the Contractor, the City may withhold from the final payment an amount not to exceed 150% of the disputed amount.

F. Within ten (10) Days from the time that all or any portion of the retention proceeds are received by Contractor, Contractor shall pay each of its Subcontractors from whom retention has been withheld each Subcontractor’s share of the retention received. However, if a retention payment received by Contractor is specifically designated for a particular Subcontractor, payment of the retention shall be made to the designated Subcontractor if the payment is consistent with the terms of the subcontract.

ARTICLE 11 -MISCELLANEOUS

11.1 Patents.

A. Contractor shall hold and save the City, officials, officers, employees, and authorized volunteers harmless from liability of any nature or kind of claim therefrom including costs and expenses for or on account of any patented or unpatented invention, article or appliance manufactured, furnished or used by Contractor in the performance of this Contract.

11.2 Document Retention & Examination
A. In accordance with Government Code section 8546.7, records of both the City and the Contractor shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment.

B. Contractor shall make available to the City any of the Contractor’s other documents related to the Project immediately upon request of the City.

C. In addition to the State Auditor rights above, the City shall have the right to examine and audit all books, estimates, records, contracts, documents, bid documents, subcontracts, and other data of the Contractor (including computations and projections) related to negotiating, pricing, or performing the modification in order to evaluate the accuracy and completeness of the cost or pricing data at no additional cost to the City, for a period of four (4) years after final payment.

11.3 Notice.

A. All notices shall be in writing and either served by personal delivery or mailed to the other party. Written notice to the Contractor shall be addressed to Contractor’s principal place of business unless Contractor designates another address in writing for service of notice. Notice to the City shall be addressed to the City as designated in the Notice Inviting Bids unless the City designates another address in writing for service of notice. Notice shall be effective upon receipt or five (5) Days after being sent by first class mail, whichever is earlier. Notice given by facsimile shall not be effective unless acknowledged in writing by the receiving party. 519
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11.4 Notice of Third Party Claims
A. Pursuant to Public Contract Code section 9201, the City shall provide the Contractor with timely notification of the receipt of any third-party claims relating to the Contract.

The City is entitled to recover reasonable costs incurred in providing such notification.

11.5 State License Board Notice
A. Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.

11.6 Assignment of Contract
A. Contractor shall not assign, transfer, convey, sublet or otherwise dispose of the rights or title of interest of any or all of this contract without the prior written consent of the City. Any assignment or change of Contractor’s name of legal entity without the written consent of the City shall be void. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or material supplied for performance of Work called for under the Contract Documents in favor of all persons, firms, or corporations rendering such services or supplying such materials to the extent that claims are filed pursuant to the Civil Code, the Code of Civil Procedure or the Government Code.

11.7 Change In Name And Nature Of Contractor’s Legal Entity.

A. Should a change be contemplated in the name or nature of the Contractor’s legal entity, the Contractor shall first notify the City in order that proper steps may be taken to have the change reflected on the Contract and all related documents. No change of Contractor’s name or nature will affect the City’s rights under the Contract, including but not limited to the bonds.

11.8 Prohibited Interests
A. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the project, shall be or become directly or indirectly interested financially in the Contract.

11.9 Controlling Law
A. Notwithstanding any subcontract or other contract with any subcontractor, supplier, or other person or organization performing any part of the Work, this Contract shall 520
Homer Briggs Park Concession Renovation Project -90- SECTION 00700 – GENERAL CONDITIONS 46700.00920\42649889.1

be governed by the law of the State of California excluding any choice of law provisions.

11.10 Jurisdiction; Venue
A. Contractor and any subcontractor, supplier, or other person or organization performing any part of the Work agrees that any action or suits at law or in equity arising out of or related to the bidding, award, or performance of the Work shall be maintained in the Superior Court of San Bernardino County, California, and expressly consent to the jurisdiction of said court, regardless of residence or domicile, and agree that said court shall be a proper venue for any such action.

11.11 Cumulative Remedies.

A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Applicable Laws, by special warranty or guarantee, or by other provisions of the Contract Documents.

The provisions of this Article will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply.

11.12 Survival of Obligations.

A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor.

11.13 Headings.

A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions.

11.14 Assignment of Antitrust Actions
A. In accordance with §7103.5(b) of the California Public Contract Code, Contractor and Subcontractors must conform to the following requirements:

1. In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, Contractor or Subcontractor offer and agree to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under §4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with §16700) of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract.

2. This assignment must be made and become effective at the time the awarding body tenders to Contractor, without further acknowledgment by the parties. 521
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11.15 All Legal Provisions Included
A. Contractor shall give all notices and comply with all federal, state and local laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified by their terms. References to specific laws, rules or regulations in this Contract are for reference purposes only, and shall not limit or affect the applicability of provisions not specifically mentioned. If Contractor observes that drawings and specifications are at variance therewith, he shall promptly notify City in writing and any necessary changes shall be adjusted as provided for in this Contract for changes in Work. If Contractor performs any Work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to City, he shall bear all costs arising therefrom.

B. Contractor shall be responsible for familiarity with the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.). The Work will be performed in compliance with ADA laws, rules and regulations. Contractor shall comply with the Historic Building Code, including, but not limited to, as it relates to the ADA, whenever applicable.

C. Contractor acknowledges and understands that, pursuant to Public Contract Code section 20676, sellers of "mined material" must be on an approved list of sellers published pursuant to Public Resources Code section 2717(b) in order to supply mined material for this Contract.

D. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the Work, shall be or become directly or indirectly interested financially in the Contract.

E. Contractor shall comply, and shall ensure all subcontractors comply, with all applicable requirements of the most current version of the regulations imposed by California Air Resources Board (“CARB”) including, without limitation, all applicable terms of Title 13, California Code of Regulations Division 3, Chapter 9 and all pending amendments (“Regulation”).

Throughout the Project, and for three (3) years thereafter, Contractor shall make available for inspection and copying any and all documents or information associated with Contractor’s and its subcontractors’ fleets including, without limitation, the Certificates of Reported Compliance (“CRCs”), fuel/refueling records, maintenance records, emissions records, and any other information the Contractor is required to produce, keep or maintain pursuant to the Regulation upon two (2) calendar days’ notice from the City.

Contractor shall be solely liable for any and all costs associated with compliance with the Regulation as well as for any and all penalties, fines, damages, or costs associated with any and all violations, or failures to comply with the Regulation.

Contractor shall defend, indemnify and hold harmless the City, its officials, officers, employees and authorized volunteers free and harmless from any claims, liabilities, 522
Homer Briggs Park Concession Renovation Project -92- SECTION 00700 – GENERAL CONDITIONS 46700.00920\42649889.1

costs, penalties or interest arising out of any failure or alleged failure to comply with the Regulation
F. All provisions of law required to be inserted in the Contract or Contract Documents pursuant to any Applicable Laws shall be and are inserted herein. If through mistake, neglect, oversight, or otherwise, any such provision is not herein inserted or inserted in improper form, upon the application of either party, the Contract or Contract Documents shall be changed by City, at no increase in Contract Price or extension in Contract Times, so as to strictly comply with the Applicable Laws and without prejudice to the rights of either party hereunder.
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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: 18
SUBJECT:

A GOODS AND EQUIPMENT PURCHASE AGREEMENT WITH MCLAUGHLIN WASTE EQUIPMENT, INC. FOR COMMERCIAL BIN PARTS

CITY OF ONTARIO
Agenda Report
April 15, 2025
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 Canyon Country, California, for the purchase of commercial bin parts for a total contract amount not-to- exceed $1,000,000 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 $600,000 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 $200,000 per year for a total contract amount not-to-exceed $1,000,000 over the ﬁve-year term. The Fiscal Year 2024-25 Adopted Budget includes appropriations in the Integrated Waste Fund for the purchase of commercial bin parts.

BACKGROUND & ANALYSIS:

The Integrated Waste Department currently has approximately 14,000 commercial containers of various sizes in service for refuse, recycling, organics and temporary bin service for residential customers. The Department routinely repairs commercial containers in order to prolong their useful life as needed in order to maintain adequate inventory to meet customer needs.

On February 12, 2025, the City solicited quotes for Invitation No. 1867 for Commercial Bin Parts. The following four (4) vendors responded:

Vendor
Location
Amount
DH Caster International
Ontario, CA
$30,481
McLaughlin Waste Equipment, Inc.

Canyon Country, CA
$135,842.82
Wastebuilt Environmental Solutions,
LLC
Jurupa Valley, CA
$140,711.11
Blue Angel International LLC
Berkeley, CA
$171,295.69
524

The criteria used to assess the quotes included the total cost of parts, production design, warranty, and delivery lead time. DH Caster International did not submit quotes for all of the parts listed on the bid and were found non-responsive. Therefore, Staﬀ recommends that this purchase be awarded to McLaughlin Waste Equipment, Inc. since they submitted the lowest quote for all the required criteria.

McLaughlin Waste Equipment, Inc. has been the primary supplier of commercial waste containers to the City for the last ﬁve (5) years. Additionally, purchasing the McLaughlin Waste Equipment, Inc. parts 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. 525
55600.00100\32771839.1

Page 1 of 15 ends

\45774.00005\8698768.3

PAUL S. LEON
MAYOR
A
LAN D. WAPNER

MAYOR PRO TEM
JIM
W. BOWMAN

DEBRA PORADA

DAISY MACIAS

COUNCIL MEMBERS

SHEILA MAUTZ

CITY CLERK
J
AMES R. MILHISER

CITY TREASURER
S

COTT OCHOA

CITY MANAGER

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 17000 Sierra HWY, Canyon Country, California 91351 (“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 b e del
ivered 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.
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(BB&K 2024) 2 Goods and Equipment Agreement
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 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 , S
upplier 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 527
(BB&K 2024) 3 Goods and Equipment Agreement
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 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 528
(BB&K 2024) 4 Goods and Equipment Agreement
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.

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 529
(BB&K 2024) 5 Goods and Equipment Agreement
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.

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 $0 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 al
l 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 530
(BB&K 2024) 6 Goods and Equipment Agreement
performance of this Agreement.

Section 11. SUBCONTRACTS.

Unless otherwise specified, Supplier must obtain City ’s written permission before 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. 531
(BB&K 2024) 7 Goods and Equipment Agreement
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.

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 532
(BB&K 2024) 8 Goods and Equipment Agreement
coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds
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 533
(BB&K 2024) 9 Goods and Equipment Agreement
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.

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 c
ancellation of all existing orders or contracts upon terms satisfactory to City; and

3. Deliver only such portions of the Goods which City deems necessary t o pr
eserve 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 P arty’s per
formance 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. 534
(BB&K 2024) 10 Goods and Equipment Agreement
C. In the event of any such excused interference with shipments, City shall have the opt
ion either to reduce the quantity provided for in the order accordingly or to exercise its right of cancellation as set forth in this Agreement.

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
SU
PPLIER:

McLaughlin Waste Equipment, Inc.
17000 Sierra Hwy
Canyon Country, CA 91351
Attn: John McLaughlin,
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hour
s 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.
535
(BB&K 2024) 11 Goods and Equipment Agreement
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.

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 Supplier s. 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
536
(BB&K 2024) 12 Goods and Equipment Agreement

SIGNATURE PAGE TO GOODS AND EQUIPMENT PURCHASE AGREEMENT

BETWEEN THE CITY OF ONTARIO
AND MCLAUGHLIN WASTE EQUIPMENT, INC.

I
N WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written.

CITY OF ONTARIO MCLAUGHLIN WASTE EQUIMENT, INC.

By:

Its:

Printed Name:

By:

Its:

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

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

Assistant City Clerk
537
(BB&K 2024) Exhibit A - 1 Goods and Equipment Agreement Exhibit A
SC

OPE OF SERVICES
Deliveries
Orders of products will be on an as needed basis to replenish the City’s inventory to an expectable level throughout the term of the agreement and are to be delivered as described in Exhibit “B” Schedule of Services; a priced invoice shall accompany each delivery and a return receipt for all returned items; option delivered with a packing/delivery slip and the invoice emailed within 24 hours of delivery.

Will-Call
Any item picked up at your location must be accompanied with a priced invoice that includes the employees printed and signed name. Employees names authorized to charge to this account will be provided.

Payments
The City shall review and process all invoices within thirty (30) days of receipt.

Reporting
Upon the request of the City vendor shall provide applicable reports and/or statistics of the products or goods provided.

Guarantee
In no instance shall the quality of the items sold to the City be less that the specifications indicated.

All deliveries are to meet specifications. If at any time the product delivered does not meet specifications, vendor shall be responsible for making proper adjustments satisfactory to the City of Ontario, at no additional charge.

Safety Data Sheet
Any materials requiring a Safety Data Sheet (SDS) shall be shipped and emailed with the proper documentation; one (1) SDS for each product must accompany the initial delivery (as required). 538
(BB&K 2024) Exhibit B - 1 Goods and Equipment Agreement Exhibit B
Delivery Schedule
Deliveries
All deliveries shall be made within 24- 72 hours after receipt of order (ARO) 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 with 24 hours of delivery (as determined by the City some special-order items may be an exemption from the delivery time frame).

Delivery Hours are Monday through Friday 6:00 a.m. and 3:30 p.m.

Delivery Location:

Ontario Municipal Services Center – 14252 South Bon View Avenue, Ontario, CA 91761 539
(BB&K 2024) Exhibit C - 1 Goods and Equipment Agreement Exhibit C
Fee Schedule
No. Item Description Estimated Qty. UOM Per Unit Cost

1. Corner Plate 600 each $5.65

2. 5 x 7 Multi-mesh Tarp 10 each $121.87

3. Roller (1107994) 1 each $40.42

4. P62 Poly Premium 6x2 HD
Polyolefin Swivel Caster
2000 each $13.51

5. Steel Bottom - 1.5 Yard 20 each $95.80

6. Steel Bottom - 4 Yard 300 each $162.24

7. Steel Bottom - 3 Yard 50 each $137.70

8. 3 Yard Front Load Lid 300 each $23.55

9. 4 Yard Front Load Lid 600 each $23.55

10. 6x2 Polyolefin Wheel,
Bearing Bushing , Axles and
Nuts.
3000 each $7.78

11. 10.75 x 8.25 Ground Roller 20 each $63.12

12. Steel Bottom (1/2) 6 Yard 5 each $203.14
The City reserves the right to purchase more or less of the items listed above at the “per unit cost” stated. Annual quantities listed in the bid were estimates and not indicative of a guaranteed level of usage. Any like item(s) not identified in this solicitation shall be available for purchase by the City at an equivalent category discount.

The contract term shall be from April 15, 2025 through April 15, 2028. The total compensation shall not exceed Six Hundred Thousand Dollars ($600,000) over a three-year term. The City may extend the agreement for up to two (2) additional one-year terms for Two Hundred Thousand Dollars ($200,000) per year for an amount not-to-exceed One Million Dollars ($1,000,000) over the 5-year term.
540
Department: Police Department
Prepared By: Lizceth Zazueta
Staff Member Presenting: Mike Lorenz, Chief of
Police
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 19
SUBJECT:

AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH PHOENIX

GROUP INFORMATION SYSTEMS REFERENCE PROCESSING SERVICES FOR POLICE

PARKING CITATIONS, FIRE AND COMMUNITY IMPROVEMENT ADMINISTRATIVE

CITATIONS, AND FALSE ALARM PROGRAM

CITY OF ONTARIO
Agenda Report
April 15, 2025
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council authorize the City Manager, or his designee, to execute Amendment No. 1 to the Professional Services Agreement for citation services with Phoenix Group Information Systems, based in Santa Ana, California. This amendment will extend the optional two additional one-year terms and increase the authorized contract amount by $250,000, resulting in a total not-to-exceed contract amount of $1,000,000.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT:

Amendment No. 1 to the Professional Services Agreement with Phoenix Group Information Systems will increase the authorized contract by $250,000, resulting in a total not-to- exceed contract amount of $1,000,000. Should the City Council approve this amendment, appropriations for citation services will be requested in the General Fund during the next quarterly budget for Fiscal Year 2024-25, as needed. Additionally, appropriations for future ﬁscal years will be incorporated into the General Fund budget for City Council review and approval in the respective fiscal year.

BACKGROUND & ANALYSIS:

On July 1, 2022, the City of Ontario entered into a Professional Services Agreement with Phoenix Group Information Systems (Phoenix Group) for processing services related to police parking citations, ﬁre and community improvement administrative citations, and the management of the false alarm program. This agreement was the result of a comprehensive procurement process under RFP#1491. Amendment No. 1 extends the Professional Services Agreement by two additional one-year terms and increases the compensation to cover the costs of these additional years. The updated agreement is designed to ensure the continued provision of high-quality citation processing services. 541

The City of Ontario issues citations for various municipal violations, including Ontario Municipal Code violations, ﬁreworks oﬀenses, false alarms, and parking violations. Phoenix Group supports the City by processing invoices, managing false alarm registrations, paying county fees related speciﬁcally to parking citations, and assisting with the processing of contested tickets. Outsourcing these citation processing services helps reduce administrative burdens on City staﬀ, allowing employees to focus on other priority services. It also minimizes the risk of errors and ensures the accurate and timely processing of citations. Phoenix Group's online payment options provide citizens with a convenient and accessible method for paying citations and obtaining related information.

City staﬀ recommend that the City Council approve Amendment No. 1 to the Professional Services Agreement with Phoenix Group Information Systems to extend the contract for two additional one- year terms and increase compensation by $250,000, bringing the total not-to-exceed contract amount to $1,000,000.
542

AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES AGREEMENT

BETWEEN THE CITY OF ONTARIO AND

PHOENIX GROUP INFORMATION SYSTEMS

1. Parties and Date.

This Amendment No. 1 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Phoenix Group Information Systems, a Corporation (Consultant). City and are sometimes individually referred to as “Party” and collectively as “Parties.”

2. Recitals.

2.1 A
greement. The City and the Consultant have entered into an agreement entitled Services for Processing Police Parking Citations, Fire and Community Improvement Administrative Citations, and False Alarm Program dated July 1st, 2022(“Agreement”).

2.2 Ame ndment Purpose. The City and Consultant desire to amend the Agreement to extend the term of services and add additional compensation.

2.3 Ame ndment Authority. This Amendment No. 1 is authorized pursuant to Section 3.7.15 of the Agreement.

3. Terms.

3.1 A mendment

3.1.1 Section 3.1.2 “Term” of the Agreement is hereby amended in its entirety to read as follows:

Section 3.1.2 Te rm. The term of this Agreement shall be from July 1st, 2022 to June 30th, 2027 unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement, if necessary, to complete the Services.

3.1. 2 Section 3.2.1 “Compensation” of the Agreement is hereby amended in its entirety to read as follows:

Section 3.2.1 Compensation. Cons ultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "A" attached hereto and incorporated herein by reference not to exceed One Million Dollars ($1,000,000) without written approval of City’s Manager, or his or her

SHEILA MAUTZ

CITY CLERK

JAMES R. MILHISER

TREASURER

SCOTT OCHOA

CITY MANAGER
PAUL S. LEON
MAYOR

ALAN D. WAPNER

MAYOR PRO TEM

JIM W. BOWMAN

DEBRA PORADA

DAISY MACIAS

COUNCIL MEMBERS

543
designee. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1.

[SIGNATURES ON FOLLOWING PAGE]

544
SIGNATURE PAGE FOR AMENDMENT NO. 1

TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY

OF ONTARIO

AND PHOENIX GROUP INFORMATION SYSTEMS

IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 as of the day and year first above written.

CITY OF ONTARIO PHOENIX GROUP INFORMATION SYSTEMS
If corporation, two signatures, president or vice president and secretary or treasurer required.

By:

Its:

Printed Name:

By:

Its:

Printed Name:

Approved By:

Scott Ochoa
City Manager
Approved as to Form:

_____________________________________
Best Best & Krieger LLP
City Attorney

Attested By:

City Clerk

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546
547
548
549
550
551
552
553
554
555
556
Department: Planning
Prepared By: Lorena Mejia
Department:

Prepared By: Lorena Mejia
Staff Member Presenting: Rudy Zeledon,
Executive Director Community Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 20
SUBJECT:

A DEVELOPMENT AGREEMENT (FILE NO. PDA23-005) BETWEEN THE CITY OF

ONTARIO AND DIVERSIFIED PACIFIC DEVELOPMENT GROUP, LLC IN CONJUNCTION WITH THE EMPIRE GROVES SPECIFIC PLAN (FILE NO. PSP23-001)

CITY OF ONTARIO
Agenda Report
April 15, 2025
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council consider and adopt:

A
.

An Ordinance for a Development Agreement (File No. PDA23-005) between the City of Ontario and Diversiﬁed Paciﬁc Development Group, LLC to establish terms and conditions for the associated Development Plan (File No. PDEV23-039);
B
.

An Ordinance for the Empire Grove Speciﬁc Plan (File No. PSP23-001) to establish the Land Use District, development standards, guidelines, and infrastructure improvements.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:

The proposed hotel is expected to generate approximately $4.5 million in transit occupancy tax revenue during its ﬁrst year, rising to $6.5 million by year ﬁve. Additionally, the project is projected to produce around $2.2 million in Development Impact Fees. It will also contribute to an increase in property tax revenues, based on the hotel’s anticipated market value.

The development will create between 700 and 900 permanent jobs, along with 500 temporary construction jobs. Speciﬁc details regarding the payment schedule and timing of Development Impact Fees are outlined in the Development Agreement (File No. PDA23-005).

BACKGROUND & ANALYSIS:

On April 1, 2025, the City Council introduced and waived further reading of Ordinances Approving the Development Agreement (File No. PDA23-005) and the Empire Groves Specific Plan (File No. PSP23-001).

557
On March 18, 2025, the City Council continued this item to a future City Council meeting.

On January 27, 2010, the Ontario City Council certiﬁed The Ontario Plan Environmental Impact Report in conjunction with File No. PGPA06-001 (City Council Resolution No. 2010-006). On August 16, 2022, the Ontario City Council certiﬁed The Ontario Plan 2050 Update Supplemental Environmental Impact Report in conjunction with File No. PGPA20-002 (City Council Resolution No. 2022-129). The Ontario Plan 2050 (TOP) and associated Environmental Impact Report analyzed the Project site and established the vision, general guidelines, overlays, districts, mixed-use areas, etc. for the Project site and surrounding area.

The TOP adopted several overlay areas at varying scales. The ﬁrst is the Ontario Airport Metro Center Overlay (OAMC Overlay), which envisioned an area developed with a mix of regional serving retail, oﬃce, restaurant, cultural, entertainment, and residential uses. The OAMC is bounded by Fourth Street to the north, the 1-15 Freeway to the east, the Southern Paciﬁc Railroad and Airport Drive to the south and Vineyard Avenue to the west. Within the OAMC there are two Place Type Districts - Airport Metro/Entertainment District and Guasti District, as well as six Mixed Use zoning designations.

The project site is within the Guasti Place Type District and the Multimodal Mixed-Use zoning designation. Both areas are envisioned with oﬃce, commercial, hospitality, and residential uses that can complement current and future public transportation and the nearby Ontario Airport.

On October 16, 2023, the applicant submitted three applications to facilitate the development of a 600-room hotel with commercial/retail space.

A Development Agreement (File No. PDA23-005) between the City of Ontario and Diversiﬁed Paciﬁc Development Group, LLC to establish the terms and conditions for the associated Development Plan (File No. PDEV23-039).

A Speciﬁc Plan application (File No. PSP23-001 - Empire Groves Speciﬁc Plan) to establish the land use district, development standards, guidelines, and infrastructure improvements for the potential development of up to 600,000 square feet of hospitality and commercial land uses.

A Development Plan (File No. PDEV23-039) to construct a 600,000 square foot hotel consisting of 600 rooms and commercial space for restaurant and retail uses for hotel guests and the general public.

DEVELOPMENT AGREEMENT:

The proposed Development Agreement is between the City of Ontario and Diversiﬁed Paciﬁc Development Group, LLC for the construction of a full-service hotel with several on-site amenities. The City is considering this Development Agreement due to the substantial economic and community beneﬁts the Convention Hotel will bring. Additionally, it aligns with the City's vision to transform the area into a regional tourism hub, capitalizing on the increasing success and its close proximity to the Ontario International Airport (ONT), located directly across from the Ontario Convention Center. The terms of the Agreement outline the development of the hotel project, timing of development, required infrastructure improvements, as well as obligations towards Development Impact Fees, oﬀ-site street improvements, among others.

Key components of the Development Agreement include the following:
558
Development of the Property
Timing: The Developer is required to develop the Project no later than four years after the completion of the Convention Center expansion.

Public Infrastructure Improvements: Developer is responsible for connecting the hotel project to all utilities necessary to provide adequate water, sewer, gas, etc., and it is responsible for sewer and storm drain improvements necessary for the construction of the facilities.

Public Benefits
Covenant to Rebate/Reimburse: The Hotel Project is anticipated to provide substantial public beneﬁts from the increase in property taxes, retail sales taxes, transient occupancy taxes and parking taxes. Of those taxes described, the Developer shall be entitled to the rebate and reimbursement of only Transit Occupancy and Parking Taxes for a period of 20 years.

Pedestrian Bridge: The cost to construct a pedestrian bridge spanning Holt Boulevard connecting the future parking structure to the Convention Hotel will be split equally between the City and Developer if the bridge is complete by December 31, 2026. Otherwise, the City will be responsible for 100 percent of the cost to construct this bridge.

Guasti Road: Developer at its sole expense will construct and complete required right-of way improvements along the property frontage of Guasti Road. The City will issue Development Impact Fee credits to Developer for the amount incurred.

Holt Boulevard: City agrees to make road improvement to Holt Boulevard adjacent to the Property in accordance with City standards.

Staﬀ ﬁnds that the Development Agreement is consistent with State law, The Ontario Plan, and the City’s Development Agreement policies.

SPECIFIC PLAN:

The Empire Grove Speciﬁc Plan serves to implement the City’s Policy Plan for the project site and provides zoning regulations for development of the Project site by establishing permitted land uses, development standards, infrastructure requirements, implementation requirements that are outlined below. The proposed Speciﬁc Plan boundary covers 10.43 acres of vacant land for the development of a hotel and commercial/retail space. While the Speciﬁc Plan currently facilitates the hotel and commercial/retail development, there is anticipation that the proposed development will encourage future growth in the immediate and surrounding areas.

Land Use Plan – The Empire Grove Speciﬁc Plan land use plan includes one Planning Area for the Project site, the Hospitality Mixed Use (PA1). The Hospitality Mixed-Use combines hotel uses, ancillary services and amenities with local service commercial/retail uses on a single property. At buildout, the total development allowed for the project site will be 600,000 square feet (hotel: 553,124 square feet and retail: 46,876 square feet) and up to 600 guest rooms.

Design Guidelines – The design concept ensures a high-quality, attractive, and cohesive design structure for the Speciﬁc Plan. The guidelines ensure a high-quality design for new development design standards that promote energy and water conservation.

Site Plan and Circulation – The Circulation Plan for the Speciﬁc Plan reinforces the objective of moving vehicles, pedestrians, cyclists, and public transit safely and eﬃciently through and around the Project. The site planning and circulation design guidelines are intended to promote high quality aesthetics, efficient land use practices, and public safety.

Landscape Design – The landscape design guidelines ensure water-conserving, drought- 559
tolerant plant palette that will soften transitions from the ground plane to the vertical plane of the building; offer screening from the adjacent neighborhood; and add color and texture to the development.

Infrastructure – Development of the Speciﬁc Plan requires the installation of all infrastructure necessary to serve the Project as a standalone development.

PLANNING COMMISSION REVIEW
: On February 25, 2025, the Planning Commission conducted a duly noticed public hearing on the subject applications and voted (4-0) to recommend that the City Council approve the Development Agreement (Resolution No. PC25-007), and the Speciﬁc Plan (Resolution No. PC25-008).

COMPLIANCE WITH THE ONTARIO PLAN:

The proposed Project is consistent with the principles, goals and policies contained within the Vision, Governance, Policy Plan (General Plan), and City Council Priorities components of The Ontario Plan (TOP).

HOUSING ELEMENT COMPLIANCE:

The Project is consistent with the Housing Element of the Policy Plan (general plan) component of The Ontario Plan, as the Project site is not one of the properties in the Housing Element Sites contained in Tables B-1 and B-2 (Housing Element Sites Inventory) of the Housing Element Technical Report.

AIRPORT LAND USE COMPATIBILITY PLAN COMPLIANCE:

ENVIRONMENTAL REVIEW:

Staﬀ has prepared an Addendum to The Ontario Plan 2050
Supplemental Environmental Impact Report (State Clearinghouse No. 2021070364, certiﬁed by the City Council on August 16, 2022. This Application introduces no new signiﬁcant environmental impacts. All previously adopted mitigation measures are a condition of Project approval and are incorporated herein by this reference.
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ORDINANCE NO. ________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA23-005, A DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND DIVERSIFIED

PACIFIC DEVELOPMENT GROUP, LLC, TO ESTABLISH THE TERMS

AND CONDITIONS ASSOCIATED WITH A DEVELOPMENT PLAN (FILE NO. PDEV23-039), FOR A 10.43 ACRE PROPERTY LOCATED ON THE

SOUTHEAST CORNER OF GUASTI ROAD AND HOLT BOULEVARD
WITHIN THE PROPOSED PA1 (HOSPITALITY MIXED-USE) DISTRICT

OF THE EMPIRE GROVES SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF—APN: 110-322-33
WHEREAS, DIVERSIFIED PACIFIC DEVELOPMENT GROUP, LLC ("Applicant") has filed an Application for the approval of a Development Agreement, File No. PDA23- 005, as described in the title of this Ordinance (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Application applies to 10.43 acres of land generally located on southeast corner of Guasti Road and Holt Boulevard, within the proposed Empire Groves Specific Plan; and
WHEREAS, the properties to the north of the Project site are within the CCS (Convention Center Support Commercial) zoning district and are developed with offices and hotel. The property to the east is within the UC (Utilities Corridor) zoning district and is developed with a flood control channel. The property to the south and west is within the CCS (Convention Center Support Commercial) zoning district, and is developed with hotel; and
WHEREAS, the applicant submitted a Development Plan (File No. PDEV23- 039) to construct a 600,000 square foot hotel and commercial building consisting of 600 rooms; and
WHEREAS, in conjunction with the Project, the Applicant also filed an application for a Specific Plan (Empire Groves), File No. PSP23-001, to establish the land use district, development standards, guidelines, and infrastructure improvements for the development of up to 600,000 square feet of hospitality and commercial land uses on the project site; and
WHEREAS, on February 25, 2025, the Planning Commission conducted a public hearing and approved Resolution No. PC25-006, recommending the City Council approve a Resolution adopting an Addendum to the Ontario Plan 2050 Supplemental Environmental Impact Report (State Clearinghouse No. 2021070364), certified by the City Council on August 16, 2022, in conjunction with File No. PGPA20-002. The Addendum finds that the proposed project introduces no new significant environmental impacts.

Furthermore, all mitigation measures previously adopted with the Certified Environmental Impact Report are incorporated into the Project by reference; and 561
WHEREAS, the City's "Local Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) ("CEQA") and an initial study has been prepared to determine possible environmental impacts; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject Application; and
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport ("ONT"), which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (ALUCP), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on February 25, 2025, the Planning Commission of the City of Ontario conducted a hearing to consider the SEIR Addendum and the Project, and concluded said hearing on that date, voting to issue Resolution No. PC25-007, recommending the City Council approve the Application; and
WHEREAS, on March 18, 2025, the City Council of the City of Ontario conducted a hearing to consider the SEIR Addendum and the Project, and continued said hearing to April 1, 2025, date; and
WHEREAS, as the first action on the Project, on April 1, 2025, the City Council approved a Resolution adopting an SEIR Addendum to a previous Certified EIR prepared pursuant to CEQA, the State CEQA Guidelines and the City of Ontario Local CEQA Guidelines, which indicated that all potential environmental impacts from the Project were less than significant or could be mitigated to a level of significance; and WHEREAS, on April 1, 2025, the City Council of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred. 562

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND ORDAINED by the City Council of the City of Ontario, as follows:

SECTION 1: Environmental Determination and Findings. As the decision- making body for the Project, the City Council has reviewed and considered the information contained in the previous Certified EIR and supporting documentation. Based upon the facts and information contained in the previous Certified EIR and supporting documentation, the City Council finds as follows:
(1) The environmental impacts of this project were reviewed in conjunction with an Addendum to TOP 2050 Supplemental Environmental Impact Report, certified by the City of Ontario City Council on August 16, 2022, in conjunction with File No. PGPA20-002.
(2) The Addendum and administrative record have been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
(3) The City's "Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed. This Application introduces no new significant environmental impacts; and
(4) The Addendum contains a complete and accurate reporting of the environmental impacts associated with the Project, and reflects the independent judgment of the City Council; and
(5) There is no substantial evidence in the administrative record supporting a fair argument that the project may result in significant environmental impacts; and
(6) The proposed project will introduce no new significant environmental impacts beyond those previously analyzed in the Certified EIR, and all mitigation measures previously adopted by the Certified EIR, are incorporated herein by this reference.

SECTION 2: Additional Environmental Review Not Required.Based on the Addendum, all related information presented to the City Council, and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
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(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and
(3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or
(d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.

SECTION 3: Airport Land Use Compatibility Plan ("ALUCP") Compliance.

The provisions of the development agreement are consistent with the goals, policies, plans, and exhibits of the Vision, Policy Plan (General Plan), and City Council Priorities components of The Ontario Plan, and any applicable specific plans. The Development Agreement applies to approximately 10.43 acres of land located on the southeast corner of Guasti Road and Holt Boulevard within the proposed Empire Groves Specific Plan (File No. PSP23-001). The Development Agreement establishes parameters for the development of land within the Empire Groves Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the Project site.

These terms and conditions are consistent with The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the proposed Empire Groves Specific Plan and will help further the vision of the Guasti District, the Multimodal Mixed- Use Land Use designation, and support the nearby Convention Center.

SECTION 5: City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 4, above, the City Council hereby APPROVES the herein described Development Agreement, attached hereto as "Attachment A," and incorporated herein by this reference.

SECTION 6: Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void, or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action, or proceeding, and the City of Ontario shall cooperate fully in the defense.

SECTION 7: Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East "B" Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.

SECTION 8: Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the 565
fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 9: Effective Date. This Ordinance shall become effective 30 days following its adoption.

SECTION 10: Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this 15th day of April, 2025. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
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STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held April 1, 2025 and adopted at the regular meeting held April 15, 2025 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. _______ duly passed and adopted by the Ontario City Council at their regular meeting held April 15, 2025 and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
567
ATTACHMENT A:

File No. PDA23-005
Development Agreement
(Document follows this page)
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

CITY OF ONTARIO

CITY CLERK / RECORDS MANAGEMENT
303 EAST “B” STREET
ONTARIO, CA 91764-4196

Exempt from Fees Per Gov. Code § 6103 and 27383
_________________________________________________________________________ Space above this line for Recorder’s Use Only

FILE NO. PDA_______

DEVELOPMENT AGREEMENT

By and Between

City of Ontario
a California municipal corporation

and

DIVERSIFIED PACIFIC DEVELOPMENT GROUP LLC,
a California limited liability company

_________________________, 2025

San Bernardino County, California
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DEVELOPMENT AGREEMENT NO. PDA___________

This Development Agreement (hereinafter “Agreement”) is dated as of ___________, 2025, for reference purposes only, and is entered into by and between the City of Ontario, a California municipal corporation (hereinafter “CITY”), and DIVERSIFIED PACIFIC DEVELOPMENT GROUP LLC, a California limited liability company (hereinafter “OWNER”):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code and Section 4.01.015 of the Ontario Development Code; and
WHEREAS, OWNER and CITY desire that they enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, all of the procedures of the California Environmental Quality Act, Public Resources Code §§21000, et seq. (“CEQA”) have been met with respect to the Hotel Project and the Agreement in that certain Addendum to the Final Supplemental Environmental Impact Report for the Ontario Plan 2050; Empire Groves Specific Plan (State Clearinghouse No. 2021070364 (the “Addendum”); and
WHEREAS, the City Council found and determined that the Addendum was prepared in accordance with the requirements of CEQA and adequately describes the impacts of the Hotel Project described in the Addendum, which included consideration of this Agreement; and WHEREAS, CITY is currently engaged in the Ontario Convention Center Expansion & Renovation Project (as further defined in Section 4.8.1 as the “Convention Center Project”), which is slated to significantly expand and remodel the existing convention center. To support the Convention Center Project and other possible improvements that CITY is considering making, as discussed further in this Agreement, CITY and OWNER desire that OWNER develop, construct and operate a full service convention hotel (“Hotel”) on the Property, which can support and enhance the Convention Center Project. For purposes of this Agreement, a full service convention hotel means a hotel that offers a range of onsite amenities, including but not limited to a restaurant, pool, gym, laundry services, business center and meeting space or conference rooms; and
WHEREAS, CITY and OWNER acknowledge that no such premium first class hotel exists in the City of Ontario, and that OWNER will incur significant expense and risk in the 570
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development, construction and operation of the Hotel Project. Further, CITY and OWNER acknowledge that the Hotel may be difficult to finance, and that this Agreement is necessary to help facilitate investment and financing of the Hotel Project. Further, OWNER would not proceed with the Hotel without this Agreement. For purposes of this Agreement, a full service convention hotel means a hotel that offers a range of onsite amenities, including a restaurant, pool, gym, laundry services, business center and meeting space or conference rooms; and WHEREAS, CITY and OWNER agree that the Convention Center Project and Hotel Project are complementary and that the parties agree to use commercially reasonable efforts to coordinate the reopening of Convention Center and opening of the Hotel Project. As part of the Convention Center Project, CITY intends to significantly expand the Convention Center and may construct a public parking facility and outdoor plaza as part of the Convention Center Project to provide new parking near the Convention Center and the proposed Hotel Project. To further the success of the Convention Center, CITY is considering the acquisition of some or all of the Surrounding Properties (described in Section 4.7 below), to establish thereon vibrant high- end, luxury retail, commercial and residential uses that would enhance the economic viability of the Hotel Project and to further improve the tax base of CITY; and WHEREAS, the Hotel Project will provide substantial public benefits to CITY, including the creation of job opportunities for local residents in hospitality, retail, management, construction and maintenance. The Hotel Project will support local entrepreneurs and small businesses by providing them with platforms to showcase and sell their products or services. The Hotel Project will generate tax revenue for CITY. The Hotel Project will attract visitors, host key events, provide support to the Convention Center and other local businesses, ultimately enhancing the overall cityscape, further benefiting local businesses and the local economy; and WHEREAS, this Agreement and the Hotel Project are consistent with CITY’S Comprehensive General Plan and any specific plan applicable thereto; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and
WHEREAS, development of the Property, as defined in Section 1.1.21 and as more particularly described and depicted in the attached Exhibit “A” – Legal Description of the Property and Exhibit “B” - Map Showing Property and its Location, in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for timely entitlement processing and development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Hotel Project, and generally serve the purposes for which development agreements under Sections 65864 et seq. of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future be incurring substantial costs to facilitate development of the Property in accordance with this Agreement; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements to assure vesting of legal rights to develop the Property in accordance with this Agreement.
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COVENANTS
NOW, THEREFORE , in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS AND EXHIBITS.

1.1. Definitions. The following terms when used in this Agreement shall be defined as follows:

1.1.1. “Agreement” means this Development Agreement.

1.1.2. “CITY” means the City of Ontario, California, a California municipal corporation.

1.1.3. “Convention Center Project” is defined in the recitals to this Agreement and supplemented pursuant to Section 4.8.1 below.

1.1.4. “Development” means the improvement of the Property for the purposes of completing the Hotel Project, including the structures, improvements and facilities comprising the Hotel Project including, but not limited to: grading; the construction of public infrastructure and public facilities related to the Hotel Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. “Development” does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.

1.1.5. “Development Approvals” means all permits and other entitlements required as of the Effective Date for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
(a) specific plans and specific plan amendments;
(b) tentative and final subdivision and parcel maps;
(c) development plan review;
(d) conditional use permits, public use permits and plot plans; (e) zoning;
(f) grading and building permits.

1.1.6. “Development Exaction” means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.

1.1.7. “Development Impact Fee” means a monetary exaction or other charge, other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion 572
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of the cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4. For purposes of this Agreement only, “Development Impact Fee” shall not include processing fees and charges imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superseded, including by amendment or replacement.

1.1.8. “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.

1.1.9. “Effective Date” means the date that the ordinance approving this Agreement goes into effect.

1.1.10. “Existing Development Approvals” means all Development Approvals approved or issued prior to the Effective Date. Existing Development Approvals includes the Approvals incorporated herein as Exhibit “C” and all other Approvals which are a matter of public record on the Effective Date.

1.1.11. “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effective Date. Existing Land Use Regulations includes the Regulations incorporated herein as Exhibit “D” and all other Land Use Regulations that are in effect and a matter of public record on the Effective Date.

1.1.12. “Final Non-Appealable Date” means the date the Existing Development Approvals are final and non-appealable as set forth in the CITY Development Code and any applicable laws and the applicable statute of limitations has expired under the California Environmental Quality Act (Public Resources Code §21000 et seq.) and implementing Guidelines for CEQA (14 Cal. Code Regs. § 15000 et seq.) with respect to the Addendum, in each case without the filing of any third party challenge, appeal, or lawsuit or, if filed, such challenge, appeal, or lawsuit has been resolved in a manner satisfactory to OWNER. Promptly after the Final Non-Appealable Date occurs, the parties shall execute a joint memorandum or side letter confirming the final date of the Final Non-Appealable Date and, thereafter, the Final Non-Appealable Date shall be deemed to be the date agreed upon by the parties in such memorandum or side letter.

1.1.13. “Force Majeure” has the meaning set forth in Section 10.11. 573
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1.1.14. “Full Service Convention Hotel” has the meaning as set forth in the Recitals and supplemented pursuant to Section 4.4.3 below.

1.1.15. “General Plan” means The Ontario Plan adopted and updated on August 16, 2022 by Resolution No. 2022-129 for the Supplemental Environmental Impact Report for the General Plan Amendment; Resolution No. 2022-130 for the Governance Manual of the Ontario Plan; and Resolution No. 2022-131 for the Policy Plan component of The Ontario Plan, as amended up to the date of the first reading of the ordinance adopting and approving this Agreement.

1.1.16. “Hotel Project” means the development of the Property contemplated by the Development Plan, as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.

1.1.17. “Improvement” or “Improvements” means those public improvements required to support the development of the Hotel Project as described in the development conditions for the Hotel Project, as further described in Exhibit “E” and depicted in Exhibit “F” (together, the “Infrastructure Improvements Exhibit”).

1.1.18. “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.

1.1.19. “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.

1.1.20. “OWNER” means the persons and entities listed as OWNER on page 1 of this Agreement and their permitted successors in interest to all or any part of the Property.

1.1.21. “Parking Tax” means the tax imposed by CITY for the renting of a parking space in a parking station in the City of Ontario pursuant to Title 3, Chapter 8 of the Ontario Municipal Code, as may be modified from time to time.

1.1.22. “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement.

1.1.23. “Reservations of Authority” means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY 574
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under Section 3.7 of this Agreement.

1.1.24. “Specific Plan” means that certain specific plan adopted by CITY Council, and entitled, “Empire Groves Specific Plan.”

1.1.25. “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.

Subsequent Development Approvals shall be deemed to be subject to the provisions of this Agreement, without any further action needed on the part of either CITY or OWNER, and as defined in Section 3.7 of this Agreement.

1.1.26. “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date.

1.1.27. “Transient Occupancy Tax” or “TOT” means the tax imposed by CITY on the rent charged to guests for occupancy of hotel rooms within the development, as authorized by Title 3, Chapter 6 of the Ontario Municipal Code or otherwise, as may be modified from time to time.

1.1.28. “Total Project Costs” means all costs and expenses incurred by OWNER to acquire, develop and construct the Hotel Project and all portions thereof, and to brand and open the Hotel Project to the public, inclusive of all hotel management and franchise costs, fees and charges.

1.2. Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:

1.2.1. Exhibit “A” — Legal Description of the Property.

1.2.2. Exhibit “B” — Map showing Property and its location.

1.2.3. Exhibit “C” — Existing Development Approvals.

1.2.4. Exhibit “D” — Existing Land Use Regulations.

1.2.5. Exhibit “E” — Description of Required Infrastructure Improvements.

1.2.6. Exhibit “F” — Depiction of Required Infrastructure Improvements.

1.2.7. Exhibit “H-1”— Surrounding Property.

1.2.8. Exhibit “H-2” — Miller Property.

1.2.9. Exhibit “I” – Conceptual Depiction of the Convention Center Expansion.

1.2.10. Exhibit “J” - Development Impact Fees Imposed by the CITY.

2. GENERAL PROVISIONS.

2.1. Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement.

2.2. Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to the Property or a portion thereof, or the lessee of the Property or has the right to acquire fee simple title to the Property or a portion thereof from the current owner(s) thereof. To the extent OWNER does not own fee simple title to the Property, OWNER shall 575
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obtain written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.

2.3. Term. The term of this Agreement shall commence on the Effective Date and shall continue for an initial term of thirty (30) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement.

2.4. Assignment.

2.4.1. Right to Assign. OWNER shall have the right to sell, transfer or assign the Property (inclusive of all improvements thereon) in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.), to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in compliance with the following:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY’S City Manager, in writing, of such sale, transfer or assignment and shall provide CITY with: (1) an executed agreement providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement with respect to the portion of the Property so sold, transferred or assigned arising from and after the date of such sale, transfer or assignment; and (2) the payment of the applicable processing charge to cover CITY’S review and consideration of such sale, transfer or assignment. (c) Any sale, transfer or assignment not made in compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.

Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the benefits and burdens of this Agreement shall be binding upon and inure to such purchaser, transferee or assignee, arising from and after the date of such assignment. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer or assignment that is not made in compliance with this Section 2.4.

2.4.2. Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless OWNER no longer has a controlling legal or controlling equitable interest in all or any part of the portion of the Property sold, transferred or assigned, or such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a controlling legal or controlling equitable interest in all or any part of the portion of the Property sold, transferred or assigned. (b) OWNER is not then in default under this Agreement, which default has not been cured in accordance with Section 7.4. 576
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(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.
(e) The provisions of this Section 2.4.2 and Section 2.4.3 below shall not apply to the holder of a mortgage (inclusive of a deed of trust) encumbering the Property as security for the provision of financing towards the improvement of the Property, but shall be governed pursuant to the terms of Section 9 of this Agreement.

2.4.3. Effect of Assignment and Release of Obligations. In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.1 above and notwithstanding the release provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the “Retained Property”). (b) The owner of the Retained Property shall remain liable for the performance of all obligations of OWNER with respect to Retained Property, but shall have no further obligations with respect to the transferred property. (c) The assignee’s exercise, use and enjoyment of the Property or portion thereof (but not any Retained Property) shall be subject to the terms of this Agreement to the same extent as if the assignee were OWNER from and after the date the assignee took title to the Property or portion thereof.

2.4.4. Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section 2.4.

2.4.5. Partial Assignment and Assumption. CITY and OWNER agree OWNER may partially assign its obligations and rights under this Agreement, and all amendments hereto, to a purchaser, transferee or assignee of a lot, which has been subdivided subject to provisions of a partial assignment and assumption agreement in a form reasonably approved by CITY. Any such complete and executed partial assignment and assumption of this Agreement shall be submitted to CITY for approval pursuant to Section 2.4.1 of this Agreement. Within sixty (60) days following such complete submittal, CITY shall review, and if the above conditions are satisfied, shall approve the partial assignment and release and notify the purchaser, transferee or assignee in writing thereof. If CITY shall fail to respond to such request for approval within such sixty (60) day period, CITY shall be deemed to have approved such request. No such release approved pursuant to this Subsection 2.4.5 shall cause, or otherwise affect, a release of OWNER from the duties and obligations under this Agreement that are retained by OWNER and excluded from the transfer or assignment.

2.5. Amendment or Cancellation of Agreement. This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by CITY only upon the payment of the applicable processing charge. This provision shall not limit any remedy of CITY or OWNER as provided by this 577
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Agreement. Either Party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term “successor in interest” shall mean any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering into this Agreement in the first instance. Notwithstanding the foregoing sentence, if CITY initiates the proposed amendment to, or cancellation of, in whole or in part, this Agreement, CITY shall first give notice to OWNER of its intention to initiate such proceedings at least sixty (60) days in advance of the giving the public notice of intention to consider the amendment or cancellation.

2.6. Amendment to Reflect Consistency With Future Amendments to the Development Plan. To the extent any future amendment to the Development Plan (which shall occur only with OWNER'S prior written approval) provides for modifications to rights or obligations that differ from or alter the same or similar rights or obligations contained in this Development Agreement, OWNER reserves the right to request, and thereupon CITY shall cause, an amendment to this Development Agreement to reflect and address such modifications.

2.7. Minor Modification. Upon the written application of OWNER, minor modifications and changes to the Development Plan including modifications to building design or footprint (not affecting minimum setbacks), parking layout and design, and landscape area design may be approved by the Director of the Planning Department without the need to amend this Development Agreement. Other changes in the Development Plan shall be processed pursuant to the CITY Zoning Ordinance. It is also contemplated by CITY and OWNER that OWNER may, from time to time, seek amendments to one or more of the Development Approvals. Any such amendments are contemplated by CITY and OWNER as being within the scope of this Agreement as long as they are consistent with the Land Use Regulations and shall, upon approval by CITY, continue to constitute the Development Approvals as referenced herein.

The parties agree that any such modifications or amendments shall not constitute an amendment to this Agreement nor require an amendment to this Agreement.

2.8. Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:

2.8.1. Expiration of the stated term of this Agreement as set forth in Section 2.3.

2.8.2. Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.

2.8.3. Termination of this Agreement based on any uncured default of OWNER and following the termination proceedings requirement by the Development Agreement policies.

Completion of the Hotel Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications, shall not terminate this Agreement or the rights of OWNER or CITY hereunder. Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this 578
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Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and services mitigation fees paid pursuant to Section 4.2 of this Agreement by OWNER to CITY on which construction has not yet begun shall be refunded to OWNER by CITY within a reasonable period of time.

2.9. Notices.

2.9.1. As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder.

2.9.2. All notices shall be in writing and shall be considered given either: (i) when delivered in person, including, without limitation, by courier, to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below.

All notices shall be addressed as follows. A copy of any notice may be sent via electronic mail to the email addresses as specified below:

If to CITY:

Scott Ochoa, City Manager
City of Ontario
303 East “B” Street
Ontario, CA 91764
Email: [email protected]
If to OWNER:

Jeff Burum and Matt Jordan
Diversified Pacific Development Group LLC
10621 Civic Center Drive
Rancho Cucamonga, CA 91730
Email: [email protected]

with a copy to:

Ruben Duran, City Attorney
Best Best & Krieger, LLP
2855 E Guasti Road, Suite 400
Ontario, CA 91761
Email: [email protected]
with a copy to:

Guy Maisnik
Jeffer, Mangels, Butler & Mitchell LLP
1900 Avenue of the Stars, 7th Floor
Los Angeles, CA 90067
Email: [email protected]

2.9.3. Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
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3. DEVELOPMENT OF THE PROPERTY.

3.1. Development of the Hotel Project; Rights to Develop.

3.1.1. Development of the Hotel Project. In consideration of the premises, purposes, and intentions set forth in this Agreement, and in consideration of the assurances for development of the Hotel Project pursuant to this Agreement, OWNER agrees to use commercially reasonable efforts to develop the Hotel Project, and development of the Hotel Project shall be in accordance with: (i) the terms and conditions of this Agreement; (ii) the terms and conditions established in the Development Approvals; and (iii) the Existing Land Use Regulations. OWNER further agrees that the use, density and intensity, maximum height and size of structures and provisions for the Property reservation and dedication of land for public purposes related to the Property shall be limited to those uses permitted by the Existing Land Use Regulations. Development of the Hotel Project shall be in accordance with the Development Approvals. CITY will use reasonable diligence in processing all plans and other submittals by OWNER for the Hotel Project, so that such plans are construction ready in a timely manner for purposes of all applicable governmental approvals, inclusive of building codes and standards.

Construction of the Hotel Project shall be in compliance with all applicable building codes and standards, as such may be modified from time to time.

3.1.2. Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, OWNER shall have a vested right to develop the Property in accordance with the Existing Land Use Regulations, subject to the terms and conditions of this Agreement and the conditions established in the Development Approvals. The Hotel Project shall remain subject to all Subsequent Development Approvals required to complete the Hotel Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Existing Land Use Regulations.

3.2. Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority in Section 3.6 herein, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, CITY shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.

3.3. Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and 580
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providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment, subject to any timing or phasing requirements set forth in the Development Plan or the Phasing Plan; provided, however, that OWNER and CITY acknowledge that it shall not be a default of OWNER under this Agreement or otherwise, if the following milestones dates or any dates set forth in the Development Plan or the Phasing Plan are not achieved:

Milestone Table:

Event Date

1. Submission by OWNER of building plans
to CITY for the Hotel Project
On or before three hundred sixty-five (365)
days following the Final Non-Appealable
Date.

2. Commencement of Construction of the
Hotel Project

On or before two (2) years following the
Final Non-Appealable Date.

In order to achieve this milestone, CITY
agrees to complete its review of (a)
OWNER’S initial plan check submission
within twenty-one (21) days after receipt
of such initial submission by CITY
(provided, however, prior to such
submission OWNER and CITY shall
meet to review the proposed application),
and (b) any additional submissions
required to obtain the required permits for
the Hotel Project within fourteen (14)
days following receipt of such additional
submissions by CITY. There shall be a
day-for-day extension of this
Commencement of Construction
milestone if CITY fails to timely respond
to such submissions within the time
periods set forth above (each, a “CITY
Response Delay”).

Notwithstanding anything to the contrary herein, subject to force majeure, if OWNER has not substantially completed the Hotel by the expiration of four (4) calendar years following the Completion of the Convention Center Project, CITY shall have the right to terminate this Agreement, provided that the foregoing period shall be extended if OWNER has proceeded in good faith, but has not yet been able to obtain feasible financing on commercially reasonable terms and conditions for the construction of the Hotel Project or on account of a Force Majeure event for the number of days that the inability to obtain feasible financing event or the Force Majeure event was in effect. OWNER shall provide at least sixty (60) days advance written notice to CITY if OWNER exercises an option to extend the completion date of the Hotel Project.
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3.4. Requirement for Public Infrastructure Improvements. OWNER shall comply with any conditions of the Development Approvals with respect to providing public infrastructure improvements or facilities, if any, to the extent required in connection with the Hotel Project.

Notwithstanding any terms that may expressly identify, or the absence thereof to identify, any certain Public Infrastructure Improvements within the terms of this Agreement, the obligations of OWNER which are imposed by the conditions of the Development Approvals for the Hotel Project shall still be in effect and are not waived. Development of the Property is contingent in part on the phasing of area-wide infrastructure improvements over which OWNER has control and subject to the provisions of this Agreement. The issuance of building permits by CITY for the Development of the Property is, in general, contingent on OWNER’S completion of such needed infrastructure improvements to the extent provided herein and the availability of improvements and services to serve the Property.

3.4.1. Infrastructure Improvement Exhibit. Attached hereto as Exhibits “E” and “F” are a description and depiction, respectively, of the Improvements needed for the development of the Property. In the event of any discrepancy between Exhibit “E” and Exhibit “F”, Exhibit “F” shall control.

3.4.2. Infrastructure Improvement Plan. Subject to the prior submittal by OWNER and approval by CITY of a plan to provide sufficient public infrastructure for the construction of the Development of the Property. The plan to be submitted by OWNER for CITY approval shall describe the utilities and other infrastructure necessary to provide sufficient fire protection and other public health and safety requirements for the Development and other facilities for the Hotel Project, as shown on Exhibits “E” and “F”.

3.5. Phasing Plan. Development of the Property shall be subject to all timing and any phasing requirements established by the Development Plan, provided the same are consistent with the terms of this Agreement.

3.6. Changes and Amendments. The parties acknowledge that refinement and further development of the Hotel Project may require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY’S reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or (b) Increase the density or intensity of use of the Property as a whole; or (c) Increase the maximum height and size of permitted buildings; or (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or
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(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.7. Reservations of Authority.

3.7.1. Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, CITY shall not be prevented from applying new rules, regulations and policies upon OWNER, nor shall a development agreement prevent CITY from denying or conditionally approving any subsequent development project application on the basis of such new rules, regulations and policies, where the new rules, regulations and policies consist of the following:
(a) Processing fees and charges of every kind and nature imposed by CITY to cover the costs of processing applications for Development Approvals or for monitoring compliance with any Development Approvals;
(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure;
(c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements to protect the residents of the project and/or of the immediate community from a condition perilous to their health or safety, including all uniform codes adopted by CITY and any local amendments to those codes adopted by CITY; provided however that, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the standards and specifications that are expressly identified in the Specific Plan;
(d) Regulations that may conflict with this Agreement and the Development Plan but that are reasonably necessary to protect the residents of the project and/or of the immediate community from a condition perilous to their health or safety; (e) Regulations that do not conflict with those rules, regulations and policies set forth in this Agreement or the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the Property shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the Property;
(f) Regulations that may conflict with this Agreement or the Development Plan, but to which OWNER consents in writing.

3.7.2. Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan and/or Existing Development Approvals, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan and/or the Existing Development Approvals; provided such Subsequent Development Approvals or Subsequent Land Use Regulations are based upon any such new rules, regulations and polices described and provided above in Section 3.7.1 above.

3.7.3. Modification or Suspension by State or Federal Law. In the event that 583
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State or Federal laws or regulations, enacted after the Effective Date, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and CITY does not agree, OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non-monetary remedies); provided however, that nothing contained in this Section 3.7.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).

3.7.4. Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited.

This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.

3.8. Public Works; Utilities. If OWNER is required by this Agreement or as a condition of the Hotel Project Development Approval to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws in existence as of the Effective Date to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would be applicable to CITY or such other public agency should it have undertaken such construction. As a condition of development approval, and subject to the terms of this Agreement, OWNER shall connect the Hotel Project to all utilities necessary to provide adequate water, recycled water, sewer, gas, electric, and other utility service to the Hotel Project, as further described and depicted in the Infrastructure Improvements Exhibit. As a further condition of development approval, OWNER shall contract with CITY for CITY-owned or operated utilities for this purpose, for such price and on such terms as may be available to similarly situated customers in the City of Ontario as of the Effective Date. Notwithstanding the foregoing, OWNER is not responsible for a future or unreasonable requests to upsize or increase the capacity of any utilities to provide adequate water, recycled water, sewer, gas, electric and other utility service that are not directly related to and caused by the Hotel Project. As a further condition of development approval of the Property, to the extent OWNER does not own the Property in fee simple, OWNER must provide to CITY the written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof, pursuant to Section 2.2.

3.8.1. OWNER agrees that development of the Hotel Project shall require the construction of storm drain improvements as described in Exhibit “E” and depicted in Exhibit “F”. OWNER shall be responsible for the construction of the necessary extension of storm drain facilities to the extent such storm drain facilities are needed for the Hotel Project.

3.8.2. OWNER agrees that development of the Hotel Project shall require the construction of street improvements as described in Exhibit “E” and depicted in Exhibit “F”.

3.8.3. OWNER agrees that development of the Property shall require the extension of permanent water and recycled water improvements as described in Exhibit “E” and depicted in Exhibit “F” to serve the Property. OWNER also agrees that recycled water, if 584
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available, shall be utilized by OWNER for all construction-related water uses including prior to, and during, any grading of the Property. CITY agrees to work with OWNER to the construction and installation of the non-potable reuse system (“Reuse System”), and OWNER acknowledges that the Reuse System is subject to submittal to and approval by the State Regional Water Quality Control Board.

3.8.4. OWNER agrees that development of the Property shall require the sewer improvements, at OWNER’S sole cost and expense, subject to the terms of this Agreement, as described in Exhibit “E” and depicted in Exhibit “F”.

3.8.5. If imposed by CITY as a condition of approval for the Hotel Project, prior to the issuance of building permits for the Hotel Project, CITY agrees to enter into an agreement with San Bernardino County Flood Control District (“Flood Control”) for fire access by emergency, fire and first responders vehicles and personnel on the east side of the Property boundary using the existing San Bernardino County Flood Control District’s Access Road. Any modifications to the entitlement landscape plans to address Flood Control’s requirements will be made to the landscape construction documents that will become part of the Development Plan. If the proposed alternative emergency access is determined to be unfeasible by the CITY, OWNER shall be responsible for providing a revised access plan that ensures sufficient access for Fire Department and other emergency vehicles and personnel to service the east tower of the Hotel Project to the satisfaction of the Fire Department and the CITY. CITY agrees to work cooperatively with OWNER to adjust the landscaping plan on the Property to ensure sufficient access for Fire Department and other emergency vehicles and personnel to service the east tower of the Hotel Project to the satisfaction of the Fire Department.

3.9. Acquisition of Offsite Provision of Real Property Interests. In any instance where OWNER is required by any Development Approval or Land Use Regulation and the Development Plan to construct any public improvement on land not owned by OWNER (“Offsite Improvements”), and such public improvement solely relates to the Property and OWNER’S development and construction thereon as provided in this Agreement, as a condition of OWNER’S rights to use and occupy the Property as provided in this Agreement, OWNER shall at its sole cost and expense provide or cause to be provided, the real property interests necessary for the construction of such public improvements (the “Offsite Property”).

3.9.1. CITY Acquisition of Offsite Property. In the event OWNER is unable, after exercising reasonable and good faith efforts, including, but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the Offsite Property necessary for the construction of the Offsite Improvements, and following the written request by OWNER to CITY, CITY agrees to take reasonable and good faith efforts to acquire the Offsite Property from the owner or owners of record by negotiation to the extent permitted by law and consistent with this Agreement. If CITY is unable to acquire the Offsite Property by negotiation within thirty (30) days after OWNER’S written request, CITY shall, in accordance with the procedures established by law, use its power of eminent domain to acquire the required Offsite Property at a public hearing noticed and conducted in accordance with California Code of Civil Procedure Section 1245.235 for the purpose of considering the adoption of a resolution of necessity concerning the Offsite Property, subject to approval by the City Council and the conditions set forth in this Section 3.9.1. CITY and OWNER acknowledge that the timelines set forth in this Section 3.9.1 represent the maximum time periods which CITY and OWNER reasonably believe will be necessary to complete the acquisition of any Offsite Property. CITY agrees to use 585
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reasonable efforts to complete the actions described within lesser time periods, to the extent that it is reasonably able to do so, consistent with the legal constraints imposed upon CITY.

OWNER shall pay all necessary costs associated with such acquisition or condemnation proceedings for the required real property interests. This Section 3.9.1 is not intended by the parties to impose upon OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that OWNER elects to proceed with the development of the Hotel Project, and CITY is prevented by applicable law from acquiring such Offsite Property, and then only in accordance with valid conditions imposed by CITY upon the development of the Hotel Project under the Subdivision Map Act (California Government Code Section 66410 et seq.), or other legal authority.

3.9.2. Owner’s Option to Terminate Proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) days prior to making an offer to the owner of the Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease all acquisition proceedings with respect to that Offsite Property, whereupon CITY shall cease such proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) days prior to the date of the hearing on CITY’S intent to consider the adoption of a resolution of necessity as to any Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease condemnation proceedings, whereupon CITY shall cease such proceedings. If OWNER does not notify CITY to cease condemnation proceedings within said fifteen (15) day period, then CITY may proceed to consider and act upon the Offsite Property resolution of necessity. If CITY adopts such resolution of necessity, then CITY shall diligently institute condemnation proceedings and file a complaint in condemnation and seek an order of immediate possession with respect to the Offsite Property.

3.10. Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of CITY.

4. PUBLIC BENEFITS.

4.1. Intent. The parties acknowledge and agree that development of the Property per the Development Plan will result in substantial public benefits and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER that are balanced by commensurate public benefits. Accordingly, the parties agree that this Agreement and the Project contribute material consideration to the public to balance the private benefits conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.

4.2. Development Impact Fees.

4.2.1. Amount and Components of Development Impact Fees. For purposes of this Agreement, Development Impact Fees (“DIF”) is meant to reference the fees imposed by the CITY and those fees collected by the CITY on behalf of other public agencies shall be paid by OWNER. The Development Impact Fee amounts imposed by the CITY (“CITY DIF”) to be 586
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paid by OWNER shall only be the amounts that are in effect at the time as of the Effective Date as shown on Exhibit “J”, Development Impact Fees Imposed by CITY, attached hereto and by this reference incorporated herein. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by CITY solely on behalf of and the benefit of such other public agencies. (a) Schools Obligations. OWNER shall satisfy its school obligations with the applicable school district by paying school impact fees. Written evidence of approval by the applicable school district that OWNER has met its school obligations may be required by CITY as the condition to the issuance by CITY of any building permits for the Hotel Project. (b) Inland Empire Utilities Agency (“IEUA”) Sewer Connection Fees.

OWNER shall satisfy the applicable obligations by paying IEUA fees.

4.2.2. Time of Payment. Development Impact Fees for the CITY DIF shall be paid to CITY prior to the issuance of any building permits for the Hotel Project or except when OWNER and CITY enter into a DIF Credit Agreement at the time the CITY DIF is due with a credit issued up to the amounts of the CITY DIF provided in Exhibit “J” and as further described in Section 4.8.4. The Development Impact Fees established or imposed by other public agencies that are not controlled by CITY even if such Development Impact Fees may be collected by CITY (including without limitation, if applicable, the Inland Empire Utilities Agency Sewer Connection Fees, Ontario-Montclair School District (K-12) Fees, Cucamonga School District and Chaffey Joint Union High School Fees) (collectively, the "Pass Through DIF") must be paid when and as required in their standard course and schedule. The DIF payment obligation shall be a covenant running with the land and shall survive the expiration or early termination of this Agreement indefinitely until the DIFs are paid in full in accordance with this Agreement and in the event that any of the above requirements have not been satisfied by the OWNER.

4.3. Responsibility for Construction of Public Improvements.

4.3.1. Timely Construction of Public Infrastructure. The phasing of the area wide infrastructure construction within the vicinity of the Hotel Project must be as approved by CITY as shown on the attached Exhibit “F”. OWNER shall be responsible for the timely construction and completion of all public infrastructure required as a condition of approval for the Hotel Project as shown on the attached Exhibit “F” and any and all Hotel Project development conditions included in the Development Approvals. Unless otherwise specified in the Development Plan, all other required Improvements for the Hotel Project, shall be completed and operational for occupancy in accordance with a schedule approved by CITY and OWNER.

All Infrastructure and Improvements shall be completed as required by the Development Plan.

4.3.2. Construction of DIF Program Infrastructure. To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’S Development Impact Fee Program, CITY agrees that CITY shall issue CITY DIF Credit in accordance with the provisions of a separate Fee Credit Agreement between CITY and OWNER to be entered into at the time the CITY DIF is due and payable by OWNER.

Limitations on the use of DIF Credit issued to OWNER to offset OWNER’S DIF payment obligations shall also be subject to the provisions of a separate Fee Credit Agreement. CITY and 587
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OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY’S adopted policies applicable to such agreements.

4.4. Hotel Requirements. To balance any private benefit conferred upon OWNER under this Agreement, and provided CITY has substantially completed the Convention Center Project, OWNER agrees to provide the following as consideration for such private benefits:

4.4.1. For the duration of operating the Hotel that will be constructed as part of the Hotel Project, OWNER will maintain or caused to be maintained a booking policy that allows the Visitor and Convention Bureau to reserve a minimum number of hotel rooms to secure a convention at the then market rates and subject to room availability;

4.4.2. The new Hotel must:
(a) have at least 500 rooms;
(b) be a full-service convention hotel such that it will contain (i) appropriate meeting space for the number of hotel rooms; (ii) a full service bar; (iii) retail/restaurant areas; (iv) spa services and (v) at least one three meal restaurant on premises; (c) be a major brand that is a well-established hotel chain, generally recognized for offering hotel patrons an expected high quality level of standardized services, amenities and experiences for that major brand hotel (“Major Brand”) or, if not a Major Brand, must be associated with a brand that operates through a franchising or management agreement model that has a widespread presence and characteristics consistent with a major brand hotel or be affiliated with national independent booking service (such as Preferred Hotels & Resorts or The Leading Hotels of the World), and should the Major Brand Hotel be between brands, franchises or management companies, OWNER shall undertake diligent efforts to secure a replacement Major Brand hotel within eighteen (18) months from the earlier of: (i) the date the previous Major Brand hotel has given notice to OWNER, its successors or assigns, that the Major Brand will no longer be operating at the Property pursuant to a right in its agreement with OWNER or (ii) the date the Major Brand vacates the Property. (d) be located on the Property, which is in the “Convention Center- Hotel District,” which will soon be established and would generally be defined as the area bounded by Corona Avenue to the west, Turner Avenue to the east, I-10 to the north, and the BNSF railroad to the south.

4.5. Taxes. The Hotel Project is anticipated to provide substantial public benefits from the increase in property taxes, retail sales taxes, transient occupancy taxes, and Parking Taxes. The purpose of this section is to establish the terms and conditions under which CITY will rebate or reimburse a certain volume of gross tax revenue comprised of the Transient Occupancy Taxes, and Parking Taxes (collectively referred to as the “Taxes”) for a set period of years, provided certain conditions are met by OWNER and pursuant to the terms and conditions in this Section 4.5. The rebate or reimbursement is intended to support the financial feasibility of the Hotel Project and encourage economic growth within the City of Ontario. OWNER would not enter into this Agreement and take the risk of the Hotel Project without the provisions of this Section 4.5. The rebate or reimbursement of Taxes to OWNER provided in Section 4.5.1 shall be considered material consideration by CITY for OWNER to encourage OWNER to incur the significant risk and liability in connection with the Hotel Project and to encourage and facilitate economic growth in the City of Ontario.
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4.5.1. Covenant to Rebate/Reimburse. CITY and OWNER agree that OWNER shall be entitled to the rebate and reimbursement of the Taxes on an annual basis commencing upon the date the Hotel opens for business to the public and continuing until the earlier of (a) the twentieth (20 th) anniversary of such opening date of the Hotel, or (b) the date that the Taxes rebated and received by OWNER meets the fifty percent (50%) of the Total Project Costs threshold, which rebate and reimbursement period shall be extended on a day for day basis for each day following the date that the Hotel opens for business that the Convention Center Project is not completed; but such rebate and reimbursement period shall not exceed thirty (30) years from the Effective Date. The rebate and reimbursement of Taxes will occur by CITY providing annually a rebate of such tax revenue to OWNER, without offset, deduction or abatement, up to limits provided in this Section 4.5.1.

4.5.2. Accounting and Audits. OWNER shall provide to CITY with all the necessary documentation to substantiate the amount of TOT and Parking Taxes otherwise collectable each year of the Covenant Period. CITY reserves the right to audit the books and records of OWNER exclusively related to the Total Project Costs and TOT, provided that (a) such audit shall not occur more than once in any twelve month period, (b) such audit shall be performed not later than ninety (90) days following the date OWNER delivers to CITY such documentation and (c) such auditor shall be a national and reputable auditor and not compensated in whole or part on a contingency basis, including any incentive payment based on a percentage of savings or revenues. OWNER shall make such records available to CITY upon reasonable written notice during such audit period.

4.6. Maintenance of Open Space. OWNER shall provide for ongoing maintenance of all parks, common areas, and open space areas within the Hotel Project as may be set forth in the Development Approvals.

4.7. Compliance with Public Benefits Requirements. In the event OWNER fails or refuses to comply with any obligation of OWNER referenced in Sections 4.2, 4.3 and 4.4 beyond all applicable cure periods, OWNER shall be deemed in default of this Agreement pursuant to Section 7. below, thereby entitling the CITY to any and all remedies permitted under this Agreement, including, without limitation, the right of the CITY to withhold OWNER'S Project-related building permits, certificates of occupancy, or discretionary approvals, without liability.

4.8. City Improvements. Notwithstanding anything to the contrary in this Agreement, it shall be a condition of CITY’S obligations, if such obligation exists in this Agreement, to acquire, design, develop, construct and operate the Convention Center Project that CITY completes all actions and procedures necessary to complete a public project, including without limitation, satisfying the requirements of the California Environmental Quality Act and applicable laws for a public work project and is subject to the availability and sufficiency of funding by the CITY, as determined by CITY in its sole discretion and good faith judgment.

4.8.1. Convention Center Expansion. CITY is currently engaged in the Ontario Convention Center Expansion & Renovation Project (“Convention Center Project”), which is slated to significantly expand the existing convention center and renovate the premises and will include the construction of public parking facilities and outdoor plaza as part of the Convention Center Project to provide new parking near the Convention Center and the Hotel Project as shown in the attached Exhibit “I”, Conceptual Depiction of the Convention Center Expansion. 589
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CITY has the sole right and discretion to design and construct, as part of its Convention Center Project, expanded or new public parking facilities that may be in the form of (i) a parking structure or surface parking lot, (ii) surface parking lot only, or (iii) a parking structure and surface parking lot(s) (“CITY Parking Facilities”), which may be located on or off the Convention Center property site, or a combination of both. CITY agrees to size its CITY Parking Facilities to accommodate all Convention Center activities and employee parking for the Convention Center and incremental overflow parking for employees of the Hotel Project that may be identified as needed in the Development Plan, subject to the City’s discretion on which CITY Parking Facilities it will make available or construct.

4.8.2. Public Parking. CITY is willing to allow OWNER certain permissions to use any of the CITY Parking Facilities on a first come first serve basis with no dedicated spaces for such use. CITY and OWNER agree that the Convention Center Project and the Hotel Project are complementary and that the parties agree to use commercially reasonable efforts to coordinate the re-opening of Convention Center Project and the opening of the Hotel Project.

OWNER shall have the right to use the CITY Parking Facilities, on a first come, first serve basis for parking for the benefit of its Hotel guests and other Hotel patrons; provided any parking fees and costs, if due, for such parking shall be borne and paid by the OWNER, the Hotel guests or Hotel patrons using the parking and not at the cost to CITY. Further, in the event that OWNER desires dedicated parking spaces for any particular event or to provide parking validations to the Hotel guests or Hotel patrons, OWNER shall submit a request to CITY and CITY agrees to work cooperatively with OWNER to accommodate OWNER’S request based on availability and events at the Convention Center and such parking fees and costs shall be borne and paid by OWNER, the Hotel guests or Hotel patrons using the parking spaces. OWNER shall pay to CITY any such parking fees and costs paid by Hotel guests and patrons to park in the CITY parking structure or surface parking which are collected by OWNER in its Hotel operations.

4.8.3. Pedestrian Bridge. A pedestrian bridge (“Bridge”) spanning Holt Boulevard is estimated to cost $6.5M. This cost to design and maintain the Bridge shall be at CITY’S cost and expense. The cost to construct the Bridge, not to exceed such estimated cost, shall be split equally between CITY and OWNER if, and only if, the Bridge is completed and open to the public by December 31, 2026; otherwise, CITY will bear one hundred percent of the cost to construct the Bridge. Notwithstanding the aforementioned agreement to share the cost of to construct the Bridge, CITY retains and shall have all rights and sole discretion to design and construct such improvements on CITY’S timing for and scope of the completion of the bridge improvements that has been determined by CITY.

4.8.4. Guasti Road. OWNER agrees to construct and complete Guasti Road in accordance with CITY standards for road improvements, and CITY agrees that CITY shall issue a credit to OWNER up to the amount of the CITY DIF imposed by CITY that would be due for the Hotel Project as shown in Exhibit “J” for OWNER’S costs actually incurred in connection with the Guasti Road improvements in the public right of way area. Subject to the terms in Section 4.3.2, the CITY DIF credit shall be issued in a separate fee credit agreement to be entered into between CITY and OWNER at the time the CITY DIF is due and payable by OWNER. Additionally, the widening of Guasti Bridge over the Cucamonga Creek Channel (“Guasti Bridge Widening”) is a condition of receipt of a certificate of occupancy of the Hotel Project. Such widening of the Guasti Bridge and related improvements as shown in Exhibit “J” will be funded and constructed by CITY at its sole discretion. If the Guasti Bridge is not 590
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completed by CITY in a timely manner with the completion of the Hotel Project, such condition of the Guasti Bridge Widening shall automatically be deemed waived by CITY without the necessity of any further action by CITY or OWNER. In such event, the Guasti Bridge Widening will be required as part of any future development on the Miller Property.

4.8.5. Holt Boulevard. CITY agrees to make road improvements to Holt Boulevard adjacent to the Property in accordance with CITY standards for road improvements as shown in Exhibit “J”. CITY retains and shall have all rights and sole discretion to design and construct such improvements on CITY’S timing for and scope of the completion of the road improvements on Holt Boulevard that has been determined by CITY. The intersection of Holt Boulevard and Guasti Road including modifications to the existing traffic signal is inclusive within the scope of Holt Boulevard and will be the obligation of CITY. OWNER shall complete such improvements on the parkway behind the curb and gutter as shown on Exhibit “B”.

4.8.6. Cucamonga Creek Flood Control Channel. Improvements to the Cucamonga Creek Flood Control Channel is not part of CITY’S Capital Improvement Program.

To include any such improvements to CITY’S Capital Improvement Program, CITY shall have the right and sole discretion to design and construct such improvements on CITY’S timing and scope that has been determined by CITY.

4.9. Acquisition Properties. The acquisition of any of the Surrounding Properties or the Miller Property are subject to compliance with all applicable laws and regulations, including but not limited to, laws pertaining to land use approvals, subdivisions of land, budgetary considerations, environmental reviews and the acquisition and disposition of real property by CITY and any subsequent required discretionary approvals by the City Council of the CITY.

Nothing contained herein this Section 4.9 of the Agreement shall mean that CITY is set on a certain course or action pertaining to the acquisition or disposition of any or all of the Surrounding Properties or the Miller Property.

CITY is exploring and assessing the feasibility of establishing an entertainment and convention district, located generally around the Ontario Convention Center (“Convention Center”), the Ontario International Airport (“Airport”) and the Property, which may be comprised of a mix of high density residential housing, entertainment, retail, hospitality and commercial office-oriented uses. This may include the acquisition of several properties in the areas and certain capital improvements and infrastructure as part of the overall vision of creating key destination areas and high end amenities in this community to promote economic growth and development, whereby a number of properties surrounding the Convention Center have been preliminarily identified as potential sites for public purposes, as depicted in Exhibit “H-1” (individually or collectively, as applicable, “Surrounding Property”).

4.9.1. Miller Property. Separate from the Surrounding Property shown on Exhibit “H-1”, CITY acknowledges that it is material to OWNER’S development of the Hotel Project that certain real property and improvements thereon shown on Exhibit “H-2” (the “Miller Property”) be available to OWNER by granting an option to acquire from CITY in the event that CITY acquires the Miller Property. OWNER acknowledges that CITY desires to acquire the Miller Property for its own uses and public purposes, including but not limited to using it as a multi-modal transit hub or for another public purpose. As of the Effective Date, neither CITY nor OWNER own any portion of or interest in the Miller Property. CITY shall use commercially reasonable efforts to acquire the Miller Property directly from the current Miller 591
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Property owners by negotiated purchase; provided, that CITY determines by proper CITY procedures that acquisition of any or all of the Miller Property is necessary for its uses or projects. To the extent that the exact location for the interface between rail, bus, passenger vehicle, and active transportation to the Airport has not been determined by the San Bernardino County Transportation Authority (“SBCTA”) and the Ontario International Airport Authority (“OIAA”), CITY shall use commercially reasonable efforts to acquire the entire site, subject to the limitations and reservation provided in this Section 4.9 of the Agreement. If a portion of the Miller Property acquired is not developed for a public purpose and CITY makes available said portion for sale, OWNER shall have the right to exercise an option (the “Option”) to acquire within one (1) year of both CITY’S acquisition of the Miller Property and CITY making available (and complying with all public notice requirements in connection therewith) said portion of the Miller Property at the price for which it was acquired (or such price shall be pro- rated to the extent CITY is making only a portion of the Miller Property for sale); provided that OWNER is under substantial construction of and demonstrated to CITY that OWNER has secured sufficient funds to complete the construction or has substantially completed the Hotel Project by the time this property is made available by CITY. OWNER shall give written notice exercising its Option to CITY per the terms in Section 4.9.1(c) below and OWNER shall consummate and close escrow for the acquisition of the portion of the Miller Property made available for sale by CITY within one (1) year thereafter. In the event that OWNER does not timely exercise its Option, then CITY shall have no further obligations to OWNER pertaining to any portion of the Miller Property and shall have the right to dispose of said property free of any options to purchase.
(a) Reservation of CITY Discretion. CITY retains the discretion of when it may initiate or attempt the acquisition the Miller Property, which would not occur before June 30, 2029. If CITY is unable to negotiate the purchase of the Miller Property between itself and the Miller Property owners, CITY may consider initiating eminent domain proceedings to acquire the Miller Property, subject to and in accordance with all applicable laws and procedures.

It is expressly acknowledged, understood and agreed by the Parties that CITY undertakes no obligation to adopt any resolution of necessity, and does not prejudge or commit to any person regarding the findings and determinations to be made by CITY with respect to any resolution of necessity. If CITY does not elect to or is unable to acquire title or the insurable right to possession of the Miller Property through exercise of its power of eminent domain or by negotiated purchase on or before June 30, 2031, the Parties shall meet and confer for ninety (90) days to discuss in good faith alternative deal structures. If no such alternative is approved by the Parties within such ninety (90) day period, the Parties shall have no further obligations or liability to the other Party or to any person relative to the terms of this Section 4.9.1 in this Agreement and neither OWNER nor CITY shall be in Default under this Agreement. (b) Independent Contract Consideration. Upon the Effective Date, OWNER shall deliver to CITY the sum of one hundred dollars ($100.00) (“Independent Contract Consideration”), which amount has been bargained for and agreed to as adequate consideration for OWNER’S option to purchase the Miller Property, or any portion thereof, during the time periods provided in Section 4.9.1 above and for CITY’S execution, delivery and performance of this Agreement. The Independent Contract Consideration is in addition to and independent of all other consideration provided in this Agreement and is nonrefundable to OWNER in all events. (c) Exercise of Option. OWNER may exercise the Option, if at all, by 592
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delivering notice to CITY of OWNER’S intent to exercise the Option (the “Option Exercise Notice”). Upon CITY’S receipt of the Option Exercise Notice, the parties shall enter into a purchase and sale agreement for the applicable Option Property at the Option Price described above and on other terms and provisions consistent with the terms by which CITY acquired the Miller Property.

4.9.2. Surrounding Properties. In the event that CITY acquires, or makes available for purchase, any real property owned by CITY or any real property interest in the Surrounding Property located near the Convention Center and provided that (i) OWNER, its successors or assigns, has substantially completed the Hotel Project and has substantially completed the approved development plan for the Miller Property or portion thereof in the event that OWNER, its successors or assigns, has acquired any portion of the Miller Property, or (ii) OWNER, its successors or assigns, has completed the Hotel Project and OWNER has not acquired any portion of the Miller Property as described in Section 4.9.1 above, CITY grants OWNER, and OWNER shall have, a first right of refusal to purchase any such Surrounding Property that CITY has acquired, is unencumbered and makes available for purchase, at the then- price offered by a bonafide third party, for a period of thirty (30) days after the date CITY provides written notice of said bonafide offer (“CITY Notice”) to OWNER, subject to all applicable laws and regulations that must be complied with, including but not limited to, laws pertaining to land use approvals, subdivisions of land, budgetary considerations, environmental reviews and the acquisition and disposition of real property by CITY and provided the parties enter into a separate agreement or agreements for any Surrounding Property, subject to any subsequent required discretionary approvals by the City Council of the CITY. Should OWNER choose to acquire the particular Surrounding Property in response to CITY’s Notice, OWNER shall consummate the purchase and close escrow within one (1) year of notifying CITY of its election to purchase said Surrounding Property. If OWNER elects not to purchase, then the first right of refusal is extinguished for that particular Surrounding Property and CITY is free to dispose of that particular Surrounding Property without any further obligation to OWNER.

Notwithstanding the foregoing, the CITY retains all rights and discretion to use any or all of any acquired Surrounding Property for its own uses and purposes. Nothing contained in this Agreement shall mean that CITY is set on a certain course or action pertaining to the Surrounding Property shown on Exhibit “H-1”, nor does it obligate CITY to purchase any of the Surrounding Property shown on Exhibit “H-1”, nor does it mean that CITY would be liable to OWNER should CITY not acquire any of the real property interests of said Surrounding Property shown on Exhibit “H-1”.

4.9.3. Insufficient Funds for Acquisition of Properties. In the event that CITY determines, in CITY’S sole and exclusive discretion, that CITY does not have sufficient funds to purchase the Miller Property or any or all of the Surrounding Properties, CITY shall provide Notice to OWNER of the amount that CITY requires to complete the acquisition of the Miller Property only in the event that OWNER is under substantial construction of and demonstrated to CITY that OWNER has secured sufficient funds to complete the construction or has substantially completed the Hotel Project, or to complete acquisition of any of the Surrounding Properties only in the event that OWNER has substantially completed the Hotel Project and has substantially completed the approved development plan for the Miller Property or portion thereof in the event that OWNER, its successors or assigns, has acquired any portion of the Miller Property. OWNER may, but shall not be obligated to, provide the funds necessary to complete the acquisition of the Surrounding Properties or the Miller Property. In such event, upon 593
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OWNER providing proof of funds necessary to complete the acquisition of the Surrounding Properties or the Miller Property, as applicable, CITY shall assign to OWNER or OWNER'S designee any and all contracts to which the CITY is a party for such acquisition. If CITY determines that it has insufficient funds to acquire the Surrounding Properties or the Miller Property and Developer does not provide the funds necessary for CITY to acquire the Surrounding Properties or the Miller Property, CITY shall not be in default under this Agreement and shall be without liability to OWNER.

4.10. Signage. OWNER shall have the right to install and maintain or cause to be installed and maintained signage throughout the Hotel Project, and on improvements throughout the Hotel Project and other portions of the Specific Plan Area controlled or occupied by OWNER or any affiliate thereof in accordance with the Sign Program set forth in the Specific Plan and as shown on the Development Plan, including the right to engage in advertising and marketing using display messages or images, utilizing a series or grid of lights that may, be changed by electronic means, including without limitation cathode ray, LED display, plasma screen, liquid crystal display (LCD), LED embedded, architectural glass fiber optic, or other electronic media or technology.

5. FINANCING OF PUBLIC IMPROVEMENTS.

5.1. Financing Mechanism(s). If deemed appropriate and acceptable to OWNER in its sole and absolute discretion based on its feasibility for the Hotel Project, CITY and OWNER will cooperate in the formation of any special assessment district, community facilities district or alternate financing mechanism to pay for the construction and/or maintenance and operation of public infrastructure facilities or Improvements required as part of the Development Plan. CITY also agrees that, to the extent any such district or other financing entity is formed and sells bonds in order to finance such infrastructure or Improvements, OWNER may be reimbursed to the extent that OWNER spends funds or dedicates land for the establishment of public facilities.

Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring OWNER or CITY to form any such district or to issue and sell bonds.

6. REVIEW FOR COMPLIANCE.

6.1. Periodic and Special Reviews.

6.1.1. Time for and Initiation of Periodic Review. CITY shall review this Agreement every twelve (12) months from the Effective Date in order to ascertain the good faith compliance by OWNER with the terms of this Agreement. The OWNER shall submit an Annual Monitoring Report to CITY, in a form reasonably acceptable to the City Manager, along with any applicable processing charge within ten (10) days after each anniversary date of the Effective Date. Within thirty (30) days after the receipt of the Annual Monitoring Report, CITY shall review the Annual Monitoring Report. Prior to the expiration of the thirty (30) day review period, CITY shall either issue a notice of continuing compliance or a notice of non-compliance and a notice of CITY’S intent to conduct a Special Review pursuant to Sections 6.1.2 through

6.1.6. Issuance of a notice of continuing compliance may be issued by the City Manager or his designee. If CITY does not issue a notice of non-compliance within such thirty (30) day period, CITY shall be deemed to have issued a notice of compliance only for that year of review and shall not apply to any subsequent, future years in which a review and monitoring by be conducted by CITY.
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6.1.2. Initiation of Special Review. A special review may be called either by agreement between the parties or by initiation in one or more of the following ways:
(a) Affirmative vote of at least four (4) members of the Planning Commission; or
(b) Affirmative vote of at least three (3) members of the City Council.

6.1.3. Notice of Special Review. The City Manager shall begin the special review proceeding by giving notice that CITY intends to undertake a special review of this Agreement to OWNER. Such notice shall be given at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission.

6.1.4. Public Hearing. The Planning Commission shall conduct a hearing at which OWNER must demonstrate good faith compliance with the terms of this Agreement. The burden of proof on this issue is upon OWNER.

6.1.5. Findings Upon Public Hearing. The Planning Commission shall determine upon the basis of substantial evidence whether or not OWNER has, for the period under review, complied in good faith with the terms and conditions of this Agreement.

6.1.6. Procedure Upon Findings.
(a) If the Planning Commission finds and determines on the basis of substantial evidence that OWNER has complied in good faith with the terms and conditions of this Agreement during the period under review, the review for that period is concluded. (b) If the Planning Commission finds and determines on the basis of substantial evidence that OWNER has not complied in good faith with the terms and conditions of this Agreement during the period under review, the Planning Commission may recommend to the City Council to modify or terminate this Agreement. (c) The OWNER may appeal a determination pursuant to paragraph (b) to the City Council in accordance with CITY’S rule for consideration of appeals in zoning matters generally.

6.2. Proceedings Upon Modification or Termination. If, upon a finding under Section

6.1.6(b), CITY determines to proceed with modification or termination of this Agreement, CITY shall give notice to the property OWNER of its intention so to do. The notice shall be given at least ten (10) calendar days prior to the scheduled hearing and contain:

6.2.1. The time and place of the hearing;

6.2.2. A statement as to whether or not CITY proposes to terminate or to modify this Agreement; and

6.2.3. Other information that CITY considers necessary to inform OWNER of the nature of the proceeding.

6.3. Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, OWNER shall be given an opportunity to be heard. The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council finds, based upon substantial evidence in the administrative record, that OWNER has not 595
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complied in good faith with the terms and conditions of the agreement, the City Council may terminate or modify this Agreement and impose those conditions to the action it takes as it considers necessary to protect the interests of CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

6.4. Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance (“Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) OWNER is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

7. DEFAULT AND REMEDIES.

7.1. Remedies in General. It is acknowledged by the parties that neither CITY nor OWNER would have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof, except as otherwise expressly provided in this Agreement. Except as provided in this Agreement, neither party shall be liable in damages to the other, or to any of its successors and assigns, or to any other person, and each party covenants not to sue for damages or claim any damages beyond that permitted in this Agreement.

7.2. Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of certain rights set forth in this Agreement and should be available for the following reasons:

7.2.1. Money damages are unavailable against CITY as provided in Section 7.1 above.

7.2.2 Due to the size, nature and scope of the Hotel Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Hotel Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Hotel Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.

7.3. Release. Except for nondamage remedies, including the remedy of specific performance and judicial review as provided for in Sections 7.2 and 6.3, respectively, OWNER, for itself, its successors and assignees, hereby releases CITY, its officers, agents and employees 596
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from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon CITY because it entered into this Agreement or because of the terms of this Agreement.

7.4. Termination or Modification of Agreement for Default of OWNER. Subject to the provisions contained in Subsection 6.3 herein, CITY may terminate for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

7.5. Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

8. THIRD PARTY LITIGATION.

8.1. General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan, as such General Plan exists as of the Effective Date (“General Plan”), and that the General Plan meets all requirements of law. OWNER has reviewed the General Plan and concurs with CITY’S determination. CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

8.2. Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including reasonable attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall defend, at its expense, including reasonable attorneys’ fees, indemnify, and hold harmless OWNER, its agents, officers and employees from any claim, action or proceeding against OWNER, its agents, officers, or 597
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employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. The parties shall promptly notify each other of any such claim, action or proceeding, and shall cooperate in the defense.

8.3. Indemnity. In addition to the provisions of Section 8.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, resulting from the negligence or willful misconduct of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER’S employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except to the extent of any claims for damages arising through the negligence or willful misconduct of CITY or any of its officers, employees, subcontractors and independent contractors. CITY shall cooperate with OWNER in the defense of any third party legal action.

8.4. Environment Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any negligent act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to the industrial hygiene or to environmental conditions on, under or about the Property, not complying with applicable law including, but not limited to, soil and groundwater conditions, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged negligent act or omission. CITY shall cooperate with OWNER in the defense of any third party legal action.

8.5. Survival. The provisions of this Sections 8.1 through 8.5, inclusive, shall survive the termination of this Agreement.

9. MORTGAGEE PROTECTION.

The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER’S sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the Mortgagees providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement.

Any Mortgagee of the Property shall be entitled to the following rights and privileges:

9.1. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.

9.2. The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of 598
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any default by OWNER in the performance of OWNER’S obligations under this Agreement.

9.3. If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement.

9.4. Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’S obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY’S performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.

9.5. Notwithstanding anything to the contrary in this Agreement, it shall be a condition of OWNER’S obligations to develop, construct and operate the Hotel Project that OWNER obtains construction financing from a Mortgage on commercially reasonable terms and provisions that make the Hotel Project feasible as determined by OWNER in its good faith judgment.

10. MISCELLANEOUS PROVISIONS.

10.1. Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within the ten (10) days after CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

10.2. Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties with respect to the matters addressed in this Agreement, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein.

No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.

10.3. Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment 599
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of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.

10.4. Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

10.5. Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.

10.6. Singular and Plural. As used herein, the singular of any word includes the plural.

10.7. Joint and Several Obligations. Subject to Section 2.4, if at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one owner, all obligations of such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners. Notwithstanding the foregoing, no owner of a single lot which has been finally subdivided and sold to such owner as a member of the public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.

10.8. Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.

10.9. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.

10.10. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.

10.11. Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, pandemics, strikes and other labor difficulties (including the party’s employment force), government regulations, court actions (such as restraining orders or injunctions), means the (i) the unavailability of labor or supplies; a governmental moratorium or similar prohibition on construction; or a major disruption to the national, regional or international economies, capital markets and/or real estate markets or other causes beyond the party’s reasonable control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder shall be extended by the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years.

10.12. Mutual Covenants. The covenants contained herein are mutual covenants and also 600
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constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.

10.13. Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.

10.14. Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

10.15. Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.

10.16. Hotel Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Hotel Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.

10.17. Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The City Manager may delegate his powers and duties under this Agreement to an Assistant City Manager or other management level employee of CITY.

10.18. Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.

10.19. Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, 601
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residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto.

OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).

10.20. Estoppel Certificate. Within thirty (30) business days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding party alleges that specified (date and nature) defaults exist.

The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs not to exceed $5,000, incurred by CITY in connection with the issuance of estoppel certificates under this Section 10.20 prior to CITY’S issuance of such certificates.

10.21 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.

10.22 Implementation of Agreement. The City shall implement this Agreement through its City Manager (or his or her duly authorized representative). The City Manager shall have the authority to issue interpretations, waive provisions, and/or enter into amendments to this Agreement on behalf of the City so long as such actions do not materially or substantially change the uses or concept of the Project. All other material and/or substantive interpretations, waivers, or amendments shall require consideration, action and written consent of the City and/or City Council.

10.23 Prevailing Wage. OWNER, for itself, and shall pass such obligation down to its successor and assigns, agrees, covenants and warrants that the development of the Property, if any, shall comply with all applicable federal and state labor laws (including, without limitation, the requirement under California law to pay prevailing wages and hire apprentices, applicable state prevailing wage requirements pursuant to Labor Code Sections 1720 et seq. and 1770 et seq., and the regulations pursuant thereto, (“Prevailing Wage Laws”)), and all obligations as set forth herein with respect to any work performed on the Property for the Hotel Project. CITY makes no representations concerning prevailing wages in compliance with California Labor Code Section 1770 et seq. OWNER acknowledges and agrees that it shall be responsible for reviewing the applicable laws and regulations with respect to the payment of prevailing wages and 602
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complying therewith. OWNER shall be solely responsible for determining and effectuating compliance with such laws. OWNER shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law, with respect to the construction of improvements on the Property and the Hotel Project. OWNER shall indemnify, hold harmless and defends CITY, its officials, officers, employees, agents, from any and all claims, liabilities, penalties, damages, judgments, costs, expenses, and fees arising from, or out of, the acts or omissions of OWNER or any failure to comply with all applicable laws, rules or regulations pertaining to the Prevailing Wage Laws. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Hotel Project on the Property.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT NO. PDA ______________

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below.

“CITY”
CITY OF ONTARIO, a California municipal
corporation

By:________________________
Scott Ochoa
City Manager

Date: ___________________

ATTEST:

__________________________
City Clerk, Ontario

“OWNER”

DIVERSIFIED PACIFIC DEVELOPMENT

GROUP, LLC
A California limited liability company

By: ________________________
Name:

Its: ______________________

Date: ___________________

APPROVED AS TO FORM:

BEST BEST & KRIEGER, LLP

___________________________

City Attorney

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ACKNOWLEDGEMENT

STATE OF CALIFORNIA )
COUNTY OF____________________ )

On _________________, 20_____, before me,______________________________________, Date Insert Name and Title of the Officer

personally appeared ___________________________________________________________ Name(s) of Signer(s)
____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person 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, 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________________________________
Signature of Notary Public

Place Notary Seal Above
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. 605
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ACKNOWLEDGEMENT

STATE OF CALIFORNIA )
COUNTY OF____________________ )

On _________________, 20_____, before me__________________________________, Date Insert Name and Title of the Officer

personally appeared ________________________________________________________ Name(s) of Signer(s)
________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person 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, 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________________________________
Signature of Notary Public

Place Notary Seal Above

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. 606
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EXHIBIT “A”

TO DEVELOPMENT AGREEMENT

LEGAL DESCRIPTION OF THE PROPERTY

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:

PARCEL 2 OF PARCEL MAP NO. 5660, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 69 OF PARCEL MAPS, PAGES 76 THROUGH 78, INCLUSIVE, RECORDS OF SAID COUNTY AS AMENDED BY MAP RECORDED IN BOOK 80 OF PARCEL MAPS, PAGES 56 THROUGH 58, INCLUSIVE, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

APN: 0110-322-33-0-000

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EXHIBIT “B”

TO DEVELOPMENT AGREEMENT

MAP SHOWING PROPERTY AND ITS LOCATION

608
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EXHIBIT “C”

TO DEVELOPMENT AGREEMENT

EXISTING DEVELOPMENT APPROVALS

On February 25, 2025, the Planning Commission:

a) Issued Resolution No. PC25-006 recommending City Council approve an Addendum to The Ontario Plan 2050 Supplemental Environmental Impact Report (SCH #2021070364).

b) Issued Resolution No. PC25-008 recommending City Council approval of the Empire Groves Specific Plan (PSP23-001).

On April 1, 2025, the City Council:

a) Issued Resolution No. __________________ approving an Addendum to The Ontario Plan 2050 Supplemental Environmental Impact Report (State Clearinghouse No. 2021070364).
b) Issued Ordinance No. ________________ approving the Empire Groves Specific Plan (PSP23-001).
c) Issued Ordinance No. ________________ for Development Agreement (File No.

PDA23-005)
d) Issued Resolution No. ________________ Approving Development Plan (File No.

PDEV23-039)

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EXHIBIT “D”

TO DEVELOPMENT AGREEMENT

EXISTING LAND USE REGULATIONS

The Ontario Plan 2050 – Multimodal Land Use Designation The Ontario Development Code
The Empire Groves Specific Plan (Once Adopted)

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EXHIBIT “E”

TO DEVELOPMENT AGREEMENT

DESCRIPTION OF REQUIRED IMPROVEMENTS

OWNER shall design, construct, and complete all improvements within the area shown on Exhibit “F” to operate the Property, including but not limited to sewer, potable water, recycled water, storm drain, fiber, and street improvements necessary to serve the Property except as described in this Agreement as an improvement to be installed by the CITY.

Improvements OWNER is required to construct will include the sewer connection into the existing City line in Holt Boulevard, potable and recycled water connections to existing CITY lines in Holt Boulevard and Guasti Road, and storm drain connection to existing CITY line south of Guasti Road.

Street improvements for Holt Boulevard are to be installed by CITY as described in Section

4.8.5. Street improvements for Guasti Road are to be installed by OWNER or CITY as described in Section 4.8.4.

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EXHIBIT “F”

TO DEVELOPMENT AGREEMENT

DEPICTION OF REQUIRED IMPROVEMENTS

612
EXHIBIT “F”

TO DEVELOPMENT AGREEMENT

DEPICTION OF REQUIRED IMPROVEMENTS
613
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EXHIBIT “H-1”

DEPICTION OF SURROUNDING PROPERTY

614
EXHIBIT “H-1”

TO DEVELOPMENT AGREEMENT

DEPICTION OF SURROUNDING PROPERTY
615
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EXHIBIT “H-2”

DEPICTION OF MILLER PROPERTY

616
EXHIBIT “H-2”

TO DEVELOPMENT AGREEMENT

DEPICTION OF MILLER PROPERTY
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EXHIBIT “I”

CONCEPTUAL DEPICTION OF CONVENTION CENTER EXPANSION
618
EXHIBIT “I”

TO DEVELOPMENT AGREEMENT

CONVENTION CENTER EXPANSION
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EXHIBIT “J”

DEVELOPMENT IMPACT FEES IMPOSED BY THE CITY

620
Per Unit: Commercial Lodging
Land Use Category
Police 358$
Fire 299$
Regional Streets 645$
Local Streets 528$
Regional Storm Drainage 21$
Local Storm Drainage 404$
Regional Water 730$
Local Water 129$
Regional Sewer 34$
Local Sewer 302$
Solid Waste 196$
Gneral Failities 51$
Library -$
Public Meetings -$
Aquatics -$
Parks -$
Total Per Commercial Lodging Unit 3,697$
Total Commercial Lodging Units 600$
Total Project DIF Required 2,218,200$
General City (GC) Development Impact Fees (DIF) Effective 01/01/2023 621
ORDINANCE NO. ________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PSP23-001, A SPECIFIC PLAN (EMPIRE GROVES) TO ESTABLISH THE LAND USE DISTRICT,

DEVELOPMENT STANDARDS, GUIDELINES, AND INFRASTRUCTURE
IMPROVEMENTS FOR THE DEVELOPMENT OF UP TO 600,000

SQUARE FEET OF HOSPITALITY AND COMMERCIAL LAND USES ON

10.43-ACRES OF LAND LOCATED ON THE SOUTHEAST CORNER OF

GUASTI ROAD AND HOLT BOULEVARD AND MAKING FINDINGS IN
SUPPORT THEREOF—APN: 110-322-33
WHEREAS, DIVERSIFIED PACIFIC DEVELOPMENT GROUP, LLC ("Applicant") has filed an Application for the approval of a Specific Plan, File No. PSP23-001, as described in the title of this Ordinance (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Application applies to 10.43 acres of land generally located on southeast corner of Guasti Road and Holt Boulevard, within the proposed Empire Groves Specific Plan; and
WHEREAS, the properties to the north of the Project site are within the CCS (Convention Center Support Commercial) zoning district and are developed with offices and hotel. The property to the east is within the UC (Utilities Corridor) zoning district and is developed with a flood control channel. The property to the south and west is within the CCS (Convention Center Support Commercial) zoning district, and is developed with hotel; and
WHEREAS, the Empire Groves Specific Plan serves to implement the City’s Policy Plan for the project site and provides zoning regulations for development of the Project site by establishing permitted land uses, development standards, infrastructure requirements, and implementation requirements for the development of 10.43 acres within the Specific Plan boundaries. The Empire Groves Specific Plan proposes a land use plan that includes one Planning Area for the Project site, the Hospitality Mixed Use (PA1); and
WHEREAS, the Hospitality Mixed-Use combines hotel uses, ancillary services and amenities with local-serving commercial uses on a single property. At buildout, the total development allowed for the project site will be 600,000 square feet; and WHEREAS, the Hotel use is the primary component of Hospitality Mixed-Use and will occupy the majority of the FAR of the development (553,124 square feet). The hotel use includes 600 guest rooms, office space for hotel administration, and may also include ancillary uses such as restaurants, bars, lounges, day spas, gyms, ballrooms and meeting rooms; and
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WHEREAS, the local-serving retail uses (46,876 square feet) will be stand-alone uses not affiliated with the hotel and these businesses may include a combination of coffee shops, restaurants and retail that complement the hotel and convention center; and
WHEREAS, in conjunction with the Project, the Applicant also filed an application for a Development Agreement (File No. PDA23-005) between the City of Ontario and Diversified Pacific Development Group, LLC to establish the terms and conditions for the associated Development Plan (File No. PDEV23-039); and
WHEREAS, on February 25, 2025, the Planning Commission conducted a public hearing and approved Resolution No. PC25-006, recommending the City Council approve a Resolution adopting an Addendum to the Ontario Plan 2050 Supplemental Environmental Impact Report (State Clearinghouse No. 2021070364), certified by the City Council on August 16, 2022, in conjunction with File No. PGPA20-002. The Addendum finds that the proposed project introduces no new significant environmental impacts.

Furthermore, all mitigation measures previously adopted with the Certified Environmental Impact Report are incorporated into the Project by reference; and WHEREAS, the City's "Local Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) ("CEQA") and an initial study has been prepared to determine possible environmental impacts; and WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject Application; and
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport ("ONT"), which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (ALUCP), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
623
WHEREAS, on February 25, 2025, the Planning Commission of the City of Ontario conducted a hearing to consider the SEIR Addendum and the Project, and concluded said hearing on that date, voting to issue Resolution No. PC25-006, recommending the City Council adopt the SEIR Addendum, and voting to issue Resolution No. PC25-008, recommending the City Council approve the Application; and WHEREAS, on March 18, 2025, the City Council of the City of Ontario conducted a hearing to consider the SEIR Addendum and the Project, and continued said hearing to April 1, 2025, date; and
WHEREAS, as the first action on the Project, on April 1, 2025, the City Council approved a Resolution adopting an SEIR Addendum to a previous Certified EIR prepared pursuant to CEQA, the State CEQA Guidelines and the City of Ontario Local CEQA Guidelines, which indicated that all potential environmental impacts from the Project were less than significant or could be mitigated to a level of significance; and WHEREAS, on April 1, 2025, the City Council of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND ORDAINED by the City Council of the City of Ontario, as follows:

SECTION 1: Environmental Determination and Findings. As the decision- making body for the Project, the City Council has reviewed and considered the information contained in the previous Certified EIR and supporting documentation. Based upon the facts and information contained in the previous Certified EIR and supporting documentation, the City Council finds as follows:
(1) The environmental impacts of this project were reviewed in conjunction with an Addendum to TOP 2050 Supplemental Environmental Impact Report, certified by the City of Ontario City Council on August 16, 2022, in conjunction with File No. PGPA20-002.
(2) The Addendum and administrative record have been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
(3) The City's "Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed. This Application introduces no new significant environmental impacts; and
624
(4) The Addendum contains a complete and accurate reporting of the environmental impacts associated with the Project, and reflects the independent judgment of the City Council; and
(5) There is no substantial evidence in the administrative record supporting a fair argument that the project may result in significant environmental impacts; and
(6) The proposed project will introduce no new significant environmental impacts beyond those previously analyzed in the Certified EIR, and all mitigation measures previously adopted by the Certified EIR, are incorporated herein by this reference.

SECTION 2: Additional Environmental Review Not Required.Based on the Addendum, all related information presented to the City Council, and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and
(3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or
(d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more 625
significant effects on the environment, but which the City declined to adopt.

SECTION 3: Airport Land Use Compatibility Plan ("ALUCP") Compliance.

The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan.
(1) On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the decision-making body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ONT ALUCP compatibility factors, including [1] Safety Criteria (ONT ALUCP Table 2-2) and Safety Zones (ONT ALUCP Map 2-2), [2] Noise Criteria (ONT ALUCP Table 2-3) and Noise Impact Zones (ONT ALUCP Map 2-3), [3] Airspace protection Zones (ONT ALUCP Map 2-4), and [4] Overflight Notification Zones (ONT ALUCP Map 2-5). As a result, the City Council, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ONT ALUCP; and
SECTION 4: Concluding Facts and Reasons. Based upon the substantial evidence presented to the City Council during the above-referenced hearing, and upon the specific findings set forth in Section 1 through 3, above, the City Council hereby concludes as follows:
(1) The proposed Specific Plan, or amendment thereto, is consistent with the goals, policies, plans and exhibits of the Vision, Policy Plan (General Plan), and City Council Priorities components of The Ontario Plan 2050. The 10.43 Empire Groves Specific Plan is suitable for a hotel/commercial mixed-use development and is consistent with the goals and policies, plans and exhibits of the Vision, Policy Plan (General Plan), and City Council Priorities components of TOP 2050.
(2) The proposed Specific Plan, or amendment thereto, would not be detrimental to the public interest, health, safety, convenience, or general welfare of the City. The proposed Empire Groves Specific Plan is in conformance with the Land Use Policies and Goals of the Policy Plan and 626
will provide standards and guidelines for the harmonious development of the Project site, in a manner consistent with the Policy Plan. The Specific Plan is proposing hotel/commercial mixed-use development for the 10.43 acre site, which is what is mandated by the land use plan of the Policy Plan; therefore, the proposed land uses will not be detrimental to the public interest, health, safety, convenience, or general welfare of the City because it will provide land uses that are consistent with the existing and future development of the surrounding area.
(3) In the case of an application affecting specific property(ies), the proposed Specific Plan, or amendment thereto, will not adversely affect the harmonious relationship with adjacent properties and land uses. The proposed Specific Plan will establish a hotel/commercial land use, which aligns with the Project site and surrounding land uses planned in TOP 2050.
(4) In the case of an application affecting specific property(ies), the subject site is physically suitable, including, but not limited to, parcel size, shape, access, and availability of utilities, for the request and anticipated development. Specific Plan will allow for hotel/commercial mixed-use on the subject site. When in conformance with the Specific Plan, the project site is suitable in size and shape, allows for sufficient access and availability of utilities to accommodate the anticipated development.

SECTION 5: City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 4, above, the City Council hereby APPROVES the herein described Specific Plan, attached hereto as "Attachment A," and incorporated herein by this reference.

SECTION 8: Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are 627
severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 9: Effective Date. This Ordinance shall become effective 30 days following its adoption.

PASSED, APPROVED, AND ADOPTED this 15th day of April, 2025. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
628

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
629
ATTACHMENT A:

File No. PSP23-001
Empire Groves Specific Plan
(Document follows this page)
630
Empire Groves

SPECIFIC PLAN
City of Ontario, CA
February 2025
631
2 City Council
Mayor Paul S. Leon
Mayor Pro Tem Alan D. Wapner
Council Member Debra Porada
Council Member Jim W. Bowman
Council Member Daisy Macias
Development/Applicant Team
Consultant Team
Michael Baker International
Kimley-Horn and Associates, Inc.

Gensler
Translutions, Inc.

SWA Group
City Staff
Rudy Zeledon, Executive Director, Community Development Agency Henry K. Noh, Planning Director
David F. Eoff, Principal Planner
Lorena Mejia, Senior Planner
632
3 Contents
01 | INTRODUCTION................................................6

1.1 Project Location.............................................................7

1.2 The Vision......................................................................9

1.3 Specific Plan Purpose..................................................10

1.4 Community Benefits.....................................................10

1.5 California Environmental Quality Act Compliance....... 11

1.6 Project Objectives........................................................11

1.7 Specific Plan Authority and Requirements...................11

1.8 Relationship to Planning Documents............................12

1.9 Specific Plan Organization ..........................................15 02 | EXISTING CONDITIONS..................................16

2.1 Existing Land Use........................................................ 17

2.2 Existing General Plan Land Use...................................17

2.3 Existing Zoning............................................................19

2.4 Topography..................................................................20

2.5 Geology and Soils........................................................20

2.6 Flooding.......................................................................21

2.7 Noise Levels.................................................................23 03 | DEVELOPMENT PLAN......................................24

3.1 Introduction................................................................25

3.2 Land Use Plan..............................................................25

3.3 Circulation and Access.................................................27

3.4 Infrastructure Plan......................................................32

3.5 Community Services....................................................35 04 | DEVELOPMENT STANDARDS............................36

4.1 Introduction................................................................37

4.2 Development Standards..............................................37 05 | DESIGN GUIDELINES......................................42

5.1 Introduction................................................................43

5.2 Design Guidelines........................................................43 06 | IMPLEMENTATION..........................................54

6.1 Applicability.................................................................55

6.2 Severability..................................................................55

6.3 Interpretation..............................................................55

6.4 Development Review...................................................55

6.5 Financing.....................................................................55

6.6 Maintenance Responsibility.........................................55

6.7 Specific Plan Amendments..........................................55

6.8 CEQA Review................................................................57 APPENDIX A:

CONSISTENCY WITH GENERAL PLAN UPDATE.......58
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4 LIST OF FIGURES
Figure 1: Regional Project Location.......................................................................................7 Figure 2: Project Location - Local Context.............................................................................8 Figure 3: Vicinity Map...........................................................................................................8 Figure 4: Guasti District Extents - Community Design Element.............................................9 Figure 5: Compatibility Policy Map - Airport Protection Zones............................................14 Figure 6: Existing Site Aerial and Context Photos................................................................17 Figure 7: Existing General Plan Land Use............................................................................18 Figure 8: Existing Ontario Airport Metro Center Overlay......................................................18 Figure 9: Existing Zoning.....................................................................................................19 Figure 10: Topography.........................................................................................................21 Figure 11: Floodplain..........................................................................................................22 Figure 12: Dam Inundation.................................................................................................22 Figure 13: Noise Levels from Ontario Airport.......................................................................23 Figure 14: Land Use Map....................................................................................................25 Figure 15: Street Plan.........................................................................................................26 Figure 16: Street Section: East Guasti Road.......................................................................28 Figure 17: Street Section: Holt Boulevard and Bridge.........................................................28 Figure 18: Multipurpose Trails and Bikeways......................................................................29 Figure 19: Transit Access....................................................................................................30 Figure 20: BRT Route..........................................................................................................30 Figure 21: Specific Plan Area Potable Water Plan...............................................................32 Figure 22: Specific Plan Area Sewer Plan...........................................................................33 Figure 23: Specific Plan Area Recycled Water Plan............................................................34 Figure 24: Elevation Treatment...........................................................................................43 Figure 25: Vertical Elements Providing Continuity and Rhythm...........................................44 Figure 26: Site Access.........................................................................................................45 Figure 27: Specific Plan Area Landscaping Examples..........................................................47 Figure 28: Rooftop Landscaping Examples..........................................................................47 Figure 29: Examples of Paving Materials.............................................................................48 Figure 30: Shrubs and Ground Cover Palette.......................................................................49 Figure 31: Evergreen, Deciduous, Flowering, and Palm Tree Palette...................................50 Figure 32: Reeds and Grasses Palette.................................................................................51

LIST OF TABLES
Table 1: Buildout of Empire Groves Specific Plan...............................................................26 Table 2: Building Setbacks..................................................................................................38 Table 3: Allowable Land Uses.............................................................................................39 634
5635
01 6
Introduction
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7 01 | INTRODUCTION

1.1 Project Location
The Empire Groves Specific Plan (project) site
is situated in the southeastern quadrant of the
intersection of East Holt Boulevard and East
Guasti Road in the City of Ontario. The Specific
Plan Area is a triangular plot of land spanning

10.43 acres.

To the north, it is bounded by Holt Boulevard,
while East Guasti Road runs along its southern
and southwestern edges. The eastern boundary
is defined by an existing flood channel and the
Cucamonga Creek Trail. To the south of the site
lies the Ontario International Airport, which is
separated by East Guasti Road, Airport Drive,
and a set of railroad tracks. The Specific Plan
Area has direct access from Interstate 10 (I-10),
situated to the north of the site.

Directly north of the Specific Plan Area, across
East Holt Boulevard, is the Frontier Center office
building and the Holiday Inn. To the northwest is
the Ontario Convention Center, and to the west
is the Ontario Gateway Hotel.

The regional project location is shown in Figure
1, while Figure 2 provides the local context.

There are several hotels, office buildings, and car
dealerships within a 1-mile radius of the Specific
Plan Area as seen in Figure 3. The Specific Plan
Area assessor’s parcel number is 11032233.

Figure 1: Regional Project Location
Source: Google Earth
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8 EMPIRE GROVES SPECIFIC PLAN
Source: Google Earth
Figure 2: Project Location - Local Context
Source: City of Ontario
Figure 3: Vicinity Map
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9 01 | INTRODUCTION

1.2 The Vision
The vision of the project is as follows:
“Establish a world-class hotel development that serves as a central hub, offering exceptional amenities, exclusive experiences, and a renowned brand. This hotel project will serve as a catalyst for the advancement of neighboring areas, fostering meaningful connections by promoting the revitalization of roadways and trails surrounding the Specific Plan Area. ” The Specific Plan Area is part of the Guasti District, according to the Community Design Element (CD-05 Guasti District Place Type) of the General Plan (also called The Ontario Plan). The district is envisioned to preserve and enhance the historic buildings as the focal point of a vibrant mixed-use area. The district will include intense office, commercial, and lodging uses along the I-10 corridor, and appropriately scaled residential, office, commercial, and lodging near the Guasti Village historic district core. The multimodal mixed-use area within the Guasti District is intended to leverage proximity to the future multimodal transportation center and link the Ontario Convention Center, Guasti compound , and Ontario International Airport through strong physical and visual design.

Further, the Guasti District is adjacent to the Entertainment District to the east, which is envisioned as a large-scale regional entertainment hub, leveraging attractions such as the Toyota Arena and Ontario Mills, and supported by a variety of retail and dining options alongside high-intensity office and residential development. This area will evolve into a walkable urban center through the addition of mixed-use infill development, a pedestrian-oriented road and trail network, key public realm improvements, and multiple transit options.

The critical infrastructure surrounding the Specific Plan Area provides connectivity between these districts and other parts of the City and includes easy access to I-10, major arterial streets, Ontario station, planned airport loop, existing BRT lines, Metrolink lines, and the airport. The development in the Specific Plan Area could spur future growth in the area and encourage further infrastructure investments and connectivity. Some ideas for infrastructure projects include the following:

Figure 4: Guasti District Extents - Community Design Element Source: City of Ontario
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10 EMPIRE GROVES SPECIFIC PLAN
• As a direct connection to the Convention
Center and freeway, this high-traffic area
could transform into a place to be enjoyed
either by car or on foot, with interpretive/
kinetic art and grand gestures of innovative
placemaking.
• Holt Boulevard could transform with
the addition of tree-lined sidewalks, a
landscaped median, outdoor seating areas,
and kiosks. To enhance the area’s appeal,
digital beacons and adaptable signage within
the median could create a distinct gateway
effect.
• Guasti Road could be transformed into
a multimodal roadway with sidewalks, and
bike lanes. This road can also be used as an
occasional pedestrian-only zone for pop-up
events, markets, and street takeovers.
• A portion of the flood control channel
could be re-imagined as a multimodal
greenway that promotes outdoor activity. The
greenway’s potential is vast, with eight miles
of northbound trail that end at the Rancho
Cucamonga Creek trailhead.

Given the multitude of critical infrastructure
components that could be implemented in the
region, along with the visionary City planning
efforts already in progress, this area is well-
positioned for development projects that will
optimize the region’s potential for future growth.

1.3 Specific Plan Purpose
The Empire Groves Specific Plan establishes
land use regulations, development standards,
and design guidelines tailored to the unique
goals of the hotel and retail development
envisioned at this particular location. The
Specific Plan defines the uses that are permitted
and their locations, as well as design guidelines
for buildings and related on-site improvements.

The Specific Plan ensures that the area develops
in a coordinated manner with adequate
consideration of infrastructure, services, public
safety, and project financing. The purpose of the
Specific Plan is to:
• Provide a planning framework that
responds to the physical and market-driven
aspects of future development opportunities.
• Reclaim the site and transform it into
a visually attractive living, working, and
shopping environment.
• Determine the appropriate location,
maximum intensity, and mix of uses through
new development parameters.
• Encourage compatible land uses and
interfaces with adjacent properties.
• Conform to state laws and local ordinances
and policies for the preparation of specific
plans.

1.4 Community Benefits
There are several community benefits
to building a hotel complex with a retail
component in the City of Ontario.
• Construction and operation of the hotel
complex will create job opportunities for local
residents, including positions in hospitality,
retail, management, and maintenance.
• The inclusion of retail spaces can support
local entrepreneurs and small businesses by
providing them with platforms to showcase
and sell their products or services.
• The development will generate tax
revenue for the City, contributing to public
funds for essential services like education,
infrastructure, and public safety.
• A well-located and easily accessible hotel
complex such as this will attract visitors
and is a great candidate for hosting events
and conferences, further benefiting local
businesses and the economy.

The development of a hotel complex can
also attract additional investment in the area,
spurring further development and leading
to improvements in local infrastructure,
including road upgrades, sidewalks, and public
transportation facilities, ultimately enhancing
the overall cityscape as discussed in the Vision.
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11 01 | INTRODUCTION
Public spaces within the complex can serve
as gathering spots for residents and visitors,
contributing to a sense of community. The
presence of a well-maintained hotel complex
can positively impact property values in the
surrounding area.

1.5 California
Environmental Quality
Act Compliance
A CEQA analysis was conducted according
to the City’s Environmental Review Update
Checklist Form for Projects with Previously
Approved Environmental Documents to
evaluate potential impacts resulting from
the implementation of this Specific Plan.

It was determined that the certified Final
Environmental Impact Report (EIR) previously
prepared to evaluate the General Plan update
adequately covers this Specific Plan’s potential
impacts. Therefore, an Addendum to the Final
EIR was determined to be the appropriate
CEQA document to analyze this Specific
Plan. The Addendum concluded that, since
the General Plan update EIR was certified,
there are no changes in the project, changes
in circumstances under which the project
is undertaken, and/or “new information of
substantial importance” that would cause one or
more significant effects.

1.6 Project Objectives
The Empire Groves Specific Plan reflects the
City of Ontario’s long-term objectives, which
include the expansion of the City’s economic
base consistent with maintaining and enhancing
the high quality of life for all residents. The
following objectives, achieved through the
implementation of the Specific Plan, have been
identified as applicable to the project:

High-Quality Development: Implement high-
quality development through the adoption of
this Specific Plan that will provide a world-class
hotel and local retail in this area.

Flexible Standards: Provide flexible standards
that permit limited modifications between retail,
restaurant, and hotel spaces that align with the
ever-changing market conditions and allow for
long-term financial stability.

Placemaking: Create a series of attractive,
interconnected gathering spaces, including
rooftop gardens, outdoor dining spaces,
gardens, meadows, courtyards, pools, lounges,
and other outdoor facilities to meet the
recreational and social needs of visitors and
guests.

Adequate Parking: Provide flexible parking
standards to encourage parking facilities that
sufficiently meet the parking demand for all uses
at all times.

Reduce Per-Capita VMT: Design and
locate new development adjacent to existing
transportation infrastructure and services
to reduce the need for vehicle trips and to
minimize the distance of vehicle trips typically
made by automobile.

1.7 Specific Plan
Authority and
Requirements

1.7.1 Authority
The California Government Code establishes
the authority for a legislative body to adopt
an ordinance or resolution requiring that a
specific plan be prepared. As with general
plans, the Planning Commission must hold a
public hearing before the planning agency can
recommend the adoption of a specific plan. The
City Council may then adopt a specific plan by
ordinance or resolution.

The Empire Groves Specific Plan is regulatory in
nature and serves as zoning for the properties
involved. Development plans, site plans, and
tentative tract and parcel maps must be
consistent with both the Empire Groves Specific
Plan and the City of Ontario’s General Plan, as
amended.
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12 EMPIRE GROVES SPECIFIC PLAN
The Empire Groves Specific Plan is prepared
and established through the authority granted to
the City of Ontario by the California Government
Code, Title 7, Division 1, Chapter 3, Article 8,
Sections 65450 through 65457 (Specific Plans).

The City Code does not have any additional
specific content requirements beyond that
required by the Government Code.

1.7.2 Government Code
Requirements
According to Section 65451, “a specific plan
shall include a text and a diagram or diagrams
which specify all of the following in detail:
• The distribution, location, and extent of the
uses of land, including open space, within the
area covered by the plan.
• The proposed distribution, location, and
extent and intensity of major components of
public and private transportation, sewage,
water, drainage, solid waste disposal, energy,
and other essential facilities proposed to
be located within the area covered by the
plan and needed to support the land uses
described in the plan.
• Standards and criteria by which
development will proceed, and standards
for the conservation, development, and
utilization of natural resources, where
applicable.
• A program of implementation measures
including regulations, public works projects,
and financing measures necessary to carry
out the project.
• The specific plan shall include a statement
of the relationship of the specific plan to the
general plan.”

1.8 Relationship to
Planning Documents

1.8.1 General Plan
In accordance with the California Government
Code, the adoption and administration
of specific plans are permitted as an
implementation tool of a general plan. Specific
plans must demonstrate consistency with the
policies set forth in the general plan. An analysis
of how the Empire Groves Specific Plan is
consistent with the policies in the City’s General
Plan is contained in Appendix A. A General
Plan Amendment will be requested as part of
the project application to change the land use
designation from Multimodal Mixed Use to a
Specific Plan.

1.8.1.1 General Plan Policy Guidance
The following General Plan policies are useful
in providing direction for the project and
supporting the project objectives:

1.8.1.1.1 Land Use Element
Policy LU-1.1 Strategic Growth. We concentrate
growth in strategic locations that help create
place and identity, maximize available and
planned infrastructure, foster the development
of transit, and support the expansion of the
active and multimodal transportation networks
throughout the City.

Policy LU-1.6 Complete Community. We
incorporate a variety of land uses and building
types in our land use planning efforts that result
in a complete community where residents at all
stages of life, employers, workers, and visitors
have a wide spectrum of choices of where they
can live, work, shop and recreate within Ontario.

Policy LU-2.11 Context-Aware Transitions and
Connections. We require new development
projects and land-planning efforts to provide
context-aware and appropriate transitions and
connections between existing and planned
neighborhoods, blocks, sites, and buildings.

1.8.1.1.2 Mobility Element
Policy M-2.1 Active Transportation. We maintain
our Active Transportation Master Plan to create
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13 01 | INTRODUCTION
a comprehensive system of on- and off-street
bikeways and pedestrian facilities that are
safe, comfortable, and accessible and connect
residential areas, businesses, schools, parks, and
other key destination points.

Policy M-2.3 Pedestrian Walkways. We require
streets to include sidewalks and visible
crosswalks at major intersections where
necessary to promote safe and comfortable
mobility between residential areas, businesses,
schools, parks, recreation areas, and other key
destination points.

Policy M-2.4 Network Opportunities. We use
public rights-of-way and easements such as,
utility easements, levees, drainage corridors,
road rights-of-way, medians, and other potential
options to maintain and expand our bicycle and
pedestrian network. In urban, mixed-use, and
transit-oriented Place Types, we encourage the
use of underutilized public and private spaces to
expand our public realm and improve pedestrian
and bicycle connectivity.

1.8.1.1.3 Housing Element
Policy H-2.3 Ontario Airport Metro Center. We
foster a vibrant, urban, intense, and highly
amenitized community in the Ontario Airport
Metro Center Area through a mix of residential,
entertainment, retail, and office-oriented uses.

1.8.1.1.4 Community Economics Element
Policy CE-1.8 Regional Attraction. We encourage
the development and programming of regional,
cultural, and entertainment destinations in
Ontario.

Policy CE-2.1 Development Projects. We require
new development and redevelopment to create
unique, high-quality places that add value to the
community.

1.8.1.1.5 Community Design Element
Goal CD-1 A dynamic, progressive city
containing distinct and complete places that
foster a positive sense of identity and belonging
among residents, visitors, and businesses.

Policy CD-1.1 City Identity. We take actions that
are consistent with the City being a leading
urban center in Southern California while
recognizing, enhancing, and preserving the
character of our existing viable neighborhoods.

Goal CD-2 A high level of design quality
resulting in neighborhoods, commercial areas,
public spaces, parks, and streetscapes that are
attractive, safe, functional, human- scale, and
distinct.

Policy CD-3.1 Unique Identity. We promote
development that heightens the unique
character and identity of each Place Type
by requiring compatible land uses and land
planning, site design, and building design that
promotes an active public realm.

Policy CD-3.4 Context-Aware and Appropriate
Design. We require appropriate building and site
design that complements existing development,
respects the intent and identity of the Place
Type, and provides appropriate transitions and
connections between adjacent uses to ensure
compatibility of scale, maintain an appropriate
level of privacy for each use, and minimize
potential conflicts.

1.8.2 Zoning Code
Per the provisions of state law, the Specific Plan
will establish the zoning and regulations for
the site. In situations where the Specific Plan
is silent, the City of Ontario’s Zoning Code will
prevail. The site is currently zoned as Specific
Plan (SP) and will refer to this document for the
development of the site.

1.8.3 Ontario Airport Land Use
Compatibility Plan
The Ontario International Airport Land Use
Compatibility Plan (ONT ALUCP) was adopted
by the Ontario City Council on April 19, 2011. The
basic function of the ONT ALUCP is to promote
compatibility between ONT and the land uses
that surround it. In accordance with state law,
the ONT Airport Influence Area encompasses
all lands that could be negatively impacted by
ONT’s present, or future aircraft operations or
land uses that could negatively affect ONT’s
airport operations. The project area is located
within the noise impact and airspace protection
zones of the ONT ALUCP. All development
proposals are required to be consistent with
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14 EMPIRE GROVES SPECIFIC PLAN
the Ontario International Airport Land Use
Compatibility Plan policies and criteria.

In addition to safety and noise, the plan
evaluates airspace protection compatibility
to prevent creation of land use features that
can be hazards to aircraft in flight and have
the potential for causing an aircraft accident
to occur. One such hazard is building height.

To determine the allowable heights of future
objects, the underlying ground elevation is
compared with the elevation of the controlling
portions of the Federal Aviation Regulations Part
77, Terminal Instrument Procedures, and One-
Engine Inoperative surfaces. These are depicted
as color bands in Figure 5. Each color band
represents a range of distance, measured in
vertical feet, between the ground and overlying
surface.

The Specific Plan Area falls in an allowable
height range of 100 to 150 feet. Based on the
plan policies, the project proponent shall submit
notification of the proposal to the Federal
Aviation Administration, as required by the
provisions of Federal Aviation Regulations
Part 77, Subpart B, and by the California Public
Utilities Code, Sections 21658 and 21659.

Figure 5: Compatibility Policy Map - Airport Protection Zones Source: Ontario International Airport Land Use Compatibility Plan, Policy Map 2-4 644
15 01 | INTRODUCTION

1.9 Specific Plan
Organization
This Specific Plan is organized into the following
six chapters.

Chapter 1 | Introduction
This chapter explains the role and function of
specific plans. It articulates the vision and a
synopsis of the community advantages that may
accrue through the execution of this project.

This chapter also delineates the Specific Plan’s
extent and authority, its adherence to the
California Environmental Quality Act (CEQA),
and its alignment with the City’s General
Plan and Zoning Ordinance, as well as the
overarching guidance provided by General Plan
policies. Moreover, this chapter establishes the
groundwork for the subsequent chapters by
elucidating the purpose and objectives of this
Specific Plan.

Chapter 2| Existing Conditions
This chapter includes an analysis of the current
conditions, encompassing the surrounding
environment, land use, zoning, topography,
geology, flooding, and noise levels.

Chapter 3| Development Plan
This chapter outlines the comprehensive land
use framework, encompassing a summary of
the project, and infrastructure plans, covering
circulation, water supply, sewage, recycled
water, and dry utilities.

Chapter 4| Development Standards
This chapter serves as the authoritative
document that delineates the specific land use
designations and regulatory guidelines for this
Specific Plan. Upon the formal adoption of this
Specific Plan, the provisions related to land use
and development standards outlined in this
chapter will assume the status of official zoning
regulations for the designated area.

Chapter 5| Design Guidelines
This chapter outlines the fundamental guiding
principles that underpin the architectural and
urban design aspects of the Specific Plan.

These guidelines are intended to provide a
comprehensive framework for the aesthetic and
functional aspects of the project, ensuring a
harmonious and purposeful development that
aligns with the overarching vision of the Specific
Plan.

Chapter 6 | Implementation
This chapter outlines the guidelines for
overseeing and administering the Specific Plan’s
development, encompassing procedures for
amendments, the equivalency program, and the
prioritization of implementation.
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16 02 Existing
Conditions
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17 02 | EXISTING CONDITIONS

2.1 Existing Land Use
The Specific Plan Area is currently vacant land
with no temporary or permanent structures.

There is, however, some vegetation and trees on
the site. Figure 6 shows images of the existing
site.

2.2 Existing General Plan
Land Use
According to the City’s General Plan Land Use
Element, the Specific Plan Area has a Mixed
Use–Multimodal land use (refer to Figure 7).

The Specific Plan Area also falls in the Ontario
Airport Metro Center Overlay (refer to Figure 8).

2.2.1 Multimodal Mixed-Use
The future multimodal transit station is under
consideration within the Mixed-Use Area, which
will link rail, regional, local, and airport transit.

Intensive office, retail, and residential uses are
envisioned to be integrated with the transit
station. The transit center is envisioned as an
iconic, convenient, and intuitively designed
multimodal transportation center that will serve
the City of Ontario and the region at large.

According to the General Plan full buildout
summary, the total acreage under the
Multimodal Mixed-Use Area (west of Archibald
Avenue and south of I-10) is 72.56 acres, of
which 10.43 acres fall in the Specific Plan
Area. It is estimated that the entire Multimodal
Mixed-Use area will absorb a total of 2,449,727
square feet of nonresidential development and
will create 5,993 jobs. Of this, 553,124 square
feet is allocated to lodging and the rest to retail
and office development. The area will have an
allowable density of 20.0 to 80.0 dwelling units
per acre.

Figure 6: Existing Site Aerial and Context Photos
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18 EMPIRE GROVES SPECIFIC PLAN
Figure 7: Existing General Plan Land Use
Source: City of Ontario
Figure 8: Existing Ontario Airport Metro Center Overlay Source: City of Ontario
648
19 02 | EXISTING CONDITIONS

2.2.2 Ontario Airport Metro
Center Overlay
The Ontario Airport Metro Center Overlay is
envisioned as the most intensive area in the
County with a vertical and horizontal mixture
of regional-serving retail, office, restaurant,
entertainment, cultural, and residential uses in
low- to mid-rise buildings (i.e., 3-10 stories).

2.2.3 Surrounding Land Uses
The surrounding land uses include Hospitality
(HOS) on the west with a floor area ratio (FAR)
of 1:00; Mixed Use–Multimodal (MU-Multimodal)
on the east of Specific Plan Area with a density
of 20.0 to 80.0 dwelling units per acre and FAR
of 1.0; Mixed Use - Meredith (MU-Meredith) in
the north with a density of 14.0 to 125.0 dwelling
units per acre and FAR of 3; and Airport (ARPT)
in the south (refer to Figure 7).

2.3 Existing Zoning
According to the City’s Zoning Map, the existing
zoning for the Specific Plan Area is a Specific
Plan Zone with a Multimodal Transit Center
overlay zone. Below are the descriptions of
these zones.

2.3.1 SP (Special Plan) Zoning
District
The SP zoning district is established to
accommodate the adoption of specific plans
pursuant to Exhibit LU-05 Overlay Areas
(Additional Plans Map) of the Policy Plan
component of The Ontario Plan. All land uses,
activities, and facilities within the SP zoning
district shall only be allowed pursuant to the
applicable Specific Plan document.

Figure 9: Existing Zoning
Source: City of Ontario, The Ontario Plan 2050
649
20 EMPIRE GROVES SPECIFIC PLAN

2.3.2 MTC (Multimodal Transit
Center) Overlay District
The Mhe MTC Overlay District was established
to allow for the interim use of existing buildings
located within the overlay district boundary
(established pursuant to Paragraph 5.01.010.F.4
[MTC Overlay District] of the Development
Code), while at the same time preserving the
City’s vision for development of a multimodal
transit center and supporting mixed-use
development. To this end, the below-listed land
uses are permitted within existing buildings in
the MTC Overlay District:
• General warehousing, storage, and
distribution trades.
• Wholesale trades.
• Retail trades limited to 15 percent of the
building’s gross floor area or 8,000 square
feet, whichever is less.
• Office administrative and business support
services.
• Other uses approved by the Planning
Director or his/her designee that are similar
in nature to those uses listed above, provided
all activities are wholly contained within the
building and do not have the potential to
negatively impact properties in the vicinity,
or are inconsistent with the Vision and Policy
Plan components of The Ontario Plan.

The Specific Plan Area is surrounded by parcels
designated as a Specific Plan Zone with MTC
overlay in the east and a CCS (Convention
Center Support) Commercial Zone to the north,
west, and south. Properties farther south are
zoned RC (Railway Corridor) and Airport.

2.4 Topography
The Specific Plan Area is relatively flat with
an approximately 1.25 percent slope from the
north to the south (refer to Figure 10). The site
elevation ranges from approximately 968 feet to
957 feet above mean sea level.

2.5 Geology and Soils

2.5.1 Fault Zones
The Specific Plan Area is not located within
the boundaries of an earthquake fault zone
for fault rupture hazards as defined by the
Alquist-Priolo Earthquake Fault Zoning Act or
identified in The Ontario Plan. The Alquist-Priolo
Earthquake Fault Zoning Act is a California state
law designed to reduce the risk of damage to
building structures on or near active earthquake
fault zones. The California Department of
Conservation, in cooperation with local
governments, is responsible for mapping the
location of active earthquake fault zones. The
act prohibits the construction of critical facilities
(e.g., schools, and hospitals) and limits the
construction of residential buildings within the
mapped zones. The nearest earthquake fault
zone is the Sierra Madre fault zone, which is
more than 6 miles north of the Specific Plan
Area. No other faults have been mapped in the
City of Ontario, according to the City’s General
Plan.

2.5.2 Land Subsidence
Land subsidence due to groundwater pumping
is a gradual sinking or settling of the earth’s
surface caused by the excessive extraction of
groundwater from underground aquifers. When
groundwater is pumped from these aquifers at a
rate faster than it can naturally be replenished, it
creates a void or space underground.

Land subsidence due to groundwater pumping
has been a long-standing issue in various parts
of California, including Ontario. California’s San
Gabriel Valley, where Ontario is located, has
experienced land subsidence as a result of
excessive groundwater extraction for several
decades. The entirety of the Specific Plan Area,
similar to the majority of Ontario, is susceptible
to land subsidence due to groundwater
pumping.

2.5.3 Soils
The Specific Plan Area is underlain by
Pleistocene/Holocene-aged Tujunga soils that
typically develop from alluvial deposits, which
are sediments carried and deposited by water,
650
21 02 | EXISTING CONDITIONS
Figure 10: Topography
often in areas near rivers, streams, or floodplains.

The Tujunga soil series generally features a
loamy texture, which means it has a balanced
mixture of sand, silt, and clay. This texture is
often suitable for agriculture and gardening.

They usually have good to moderate drainage
properties, making them suitable for a variety of
land uses.

2.6 Flooding

2.6.1 FEMA Floodplain
The majority of the Specific Plan Area, as
shown in Figure 11, is in a Federal Emergency
Management Agency (FEMA) designated 500-
year floodplain. The FEMA 500-year floodplain
is a designated area that represents the land
area at risk of flooding during a severe flood
event with a 0.2 percent annual probability of
occurrence, which is roughly equivalent to a
1-in-500 chance of occurring in any given year.

This means that, on average, it has a low annual
probability (0.2 percent) of occurring; such a
flood might be expected to happen once every
500 years.

2.6.2 Dam Inundation
San Antonio Dam is an embankment flood
control and debris dam on San Antonio Creek
in San Bernardino County, California, about
5 miles (8.0 kilometers) north of Ontario. A
potential breach of this dam could inundate
most of the City, including the Specific Plan
Area (refer to Figure 12). The reservoir behind
the dam is usually dry but can fill up after large
flooding events. The dam is owned by the US
Army Corps of Engineers, Los Angeles District.

The City periodically coordinates with the dam
owners to monitor the condition of the dam.

2.6.3 Existing Storm Water and
Drainage
The site is located immediately west of the
Cucamonga Creek Channel. This fully improved
facility provides regional flood control and storm
conveyance to the surrounding area.

A 108” diameter storm drain extends westerly
from the Cucamonga Creek Channel just south
of Guasti Road. This facility provides storm
conveyance for the adjacent property.
651
22 EMPIRE GROVES SPECIFIC PLAN
Figure 11: Floodplain
Source: City of Ontario, The Ontario Plan 2050, Safety Element Figure 12: Dam Inundation
Source: City of Ontario, The Ontario Plan 2050, Safety Element 652
23 02 | EXISTING CONDITIONS
The City of Ontario Master Plan of Drainage
indicates a future 60” Storm Drain will be
constructed within Holt Boulevard along the
project frontage.

2.6.4 Existing NPDES
Compliance
The project site is currently vacant /
undeveloped and not subject to NPDES
compliance.

Figure 13: Noise Levels from Ontario Airport
Source: City of Ontario, The Ontario Plan 2050, Safety Element

2.7 Noise Levels
The City’s Zoning Code provides exterior noise
standards for the allowed equivalent noise
levels for lodging facilities to be up to 70 dbA.

The equivalent noise level is a measure used
to represent a constant noise level over a
specified period, usually one hour. It is a way
of expressing a varying noise environment as
a single, constant level for ease of comparison.

The General Plan update also provides the
existing noise level contours from traffic, railroad,
and airport, all of which are within acceptable
ranges. Noise from Ontario Airport is shown in
Figure 13.
653
24 03 Development
Plan
654
25 03 | DEVELOPMENT PLAN

3.1 Introduction
The Development Plan provides for the
development of vibrant communities that
allow for a variety of lodging, commercial,
entertainment, and open space opportunities
that expand the Guasti area and strengthen
the City of Ontario’s economy. To achieve this,
this Specific Plan encourages a variety of
complementary land uses and community-
accessible amenities and services to establish
the Specific Plan Area as a key activity node.

This chapter provides the framework to guide
the development in the Specific Plan Area
and identifies the land uses, circulation, and
infrastructure that implement the vision of the
Empire Groves Specific Plan. It is important
to note that even though the discussion and
exhibits in this chapter are intended to guide
development within the Specific Plan Area,
the exhibits provided herein are conceptual
in nature and may change, subject to the
requirements in this Specific Plan.

3.2 Land Use Plan
The Specific Plan consists of one planning area
(PA1)–Hospitality Mixed Use (refer to Figure 14).

3.2.1 Hospitality Mixed-Use
Hospitality Mixed-Use refers to a development
that combines hotel uses, ancillary services and
amenities with local-serving commercial uses
within a single property. The allowable uses are
listed in Table 3.

Integrating hotel uses with local-serving retail
offers several benefits including, increased
foot traffic, enhances guest experiences, and
stronger community engagement. Additionally,
it can lead to economic benefits and greater
sustainability and efficiency. Hotels focus on
providing hospitality and amenities for guests,
while local-serving retail emphasizes practicality
and convenience for both visitors and local
residents. Combined, these uses create a
dynamic, mutually beneficial environment that
enhances the appeal and functionality of both.

The area allotted to each use can be found in
Table 1.

3.2.1.1 Hotel Uses (553,124 SF)
Hotel use is the primary component of
Hospitality Mixed-Use and should occupy
the majority of the FAR of the development.

This includes guest rooms, office space
Figure 14: Land Use Map
655
26 EMPIRE GROVES SPECIFIC PLAN

AREAS TOTAL SQUARE FEET NOTES
Hotel Use 553,124 See chapter 3.2.1.1 and Table 3 for
details.

Local-Serving Retail 46,876 See chapter 3.2.1.2 and Table 3 for details.

Total Square Feet 600,000
Note: The project FAR is based on gross project acreage of 10.43. Covered outdoor areas are calculated towards FAR but not towards parking calculation. Utility areas and parking are not calculated towards FAR and include all areas below grade, including parking, central plant, transformer yard, bicycle parking, main electrical/emergency/generator rooms, loading docks, trash rooms, vertical shafts, and stairs as well as spaces above grade including mechanical rooms, vertical shafts, and parking.

Table 1: Buildout of Empire Groves Specific Plan
Figure 15: Street Plan
Source: City of Ontario, The Ontario Plan 2050, Mobility Element 656
27 03 | DEVELOPMENT PLAN
for hotel administration, (MAX SF-basic
lodging 553,124SF) and may also include
restaurant(minimal SF), bars, lounges, day spas,
gyms, ballrooms, meeting rooms, and more (see
Table 3).

At buildout, the total development for the project
area will be approximately 600,000 square feet.

Table 1 provides the maximum buildout for each
use.

3.2.1.2 Local-Serving Retail Uses
(46,876 SF)
Local-serving retail, on the other hand, caters to
the daily needs of the local community as well
as the hotel use. These businesses may include
coffee shops, restaurants, retail, print shops,
laundry or tailoring services and similar types
of uses (see Table 3). These types of uses can
benefit shoppers visiting the surrounding area
as well as nearby residents who can access
these services by foot.

3.3 Circulation and
Access

3.3.1 Vehicular Circulation in the
Vicinity
The Circulation Plan complements the Land
Use Plan by linking the hotel and retail uses to
adjacent land uses and is designed to enhance
connectivity and facilitate the movement of
various transportation modes. Located south
of the San Bernardino Freeway (I-10), the
Specific Plan Area is generally bounded by
Holt Boulevard to the north, East Guasti Road
to the south and southwest, and hotel and light
industrial uses to the west and east, respectively.

Holt Boulevard and East Guasti Road provide
connections to I-10, which would be the primary
regional access point to the Specific Plan Area.

These thoroughfares also provide connectivity
to Archibald Avenue and North Vineyard
Avenue, located a block away to the east and
west of the Specific Plan Area, respectively, and
permit easy access to the airport to the south of
the Specific Plan Area.

3.3.1.1 Potential Roadway
Improvements in the Vicinity
While not a part of the Specific Plan, potential
roadway improvements in the vicinity could
enhance and stimulate future development of
the area and improve connectivity between the
Guasti District and Airport Metro/Entertainment
District in the east as well as with the airport.

Figure 15, Street Plan of the Mobility Element
from The Ontario Plan 2050, reflects the
city’s vision for developing a comprehensive,
multimodal transportation network. This
network is designed to meet the mobility needs
of residents, visitors, and businesses while
maintaining a high quality of life.

Holt Boulevard: Holt Boulevard is a major
connector and can be envisioned as a gateway
to the Guasti District, as reflected in Figure 17.

It currently has three lanes on the north side
and two lanes on the south side of the roadway.

A lane drops from each side as one travels
east past the Holt Boulevard and Guasti Road
intersection. The roadway has wide medians. It
may be improved to make it visually appealing
by adding attractive landscaping and shaded
trees within the median and on the edges of
the roadway. The existing sidewalks could
be widened and enhanced, and gaps could
be filled with new sidewalks for easier and
continuous pedestrian access. Holt Boulevard
along the project frontage is an on-ramp
entrance for Interstate 10. Required roadway
improvements associated with this development
will need to be coordinated with the California
Department of Transportation (Caltrans).

Proposed final roadway design will be subject to
City review and approval.

East Guasti Road: East Guasti Road provides
ample right-of-way for improvements, as
reflected in Figure 16. Proposed improvements
from Holt Avenue to the east side of the bridge
over the Cucamonga Creek include a four-
lane roadway, a landscaped median, and a
new sidewalk on the northeast side. Final
roadway design and limits will be subject to
the City’s review and approval. There is an
existing sidewalk on the southwest side that
657
28 EMPIRE GROVES SPECIFIC PLAN
covers roughly half of the total frontage, and
the entire southwest side of the roadway is
existing, while the northeast side is proposed.

Additional roadway improvements could include
a bike lane and sidewalk with shaded trees,
complementing the future development of the
area and connecting the Guasti District with the
Airport Metro/Entertainment District.

Airport Drive: The Guasti District has many
hotels and lodging facilities. A major part of
the clientele comes from the airport, south of
the Specific Plan Area. The district acts as the
gateway to the City from the airport. Hence,
investing in Airport Drive improvements and
establishing better connectivity with the area
north of the airport will both enhance the travel
experience for visitors and help with future
investments in the area. Airport Drive currently
has three lanes in each direction with a
median and a sidewalk on the south side of the
roadway. The north side is bordered by railroad
Figure 16: Street Section: East Guasti Road
Figure 17: Street Section: Holt Boulevard and Bridge
658
29 03 | DEVELOPMENT PLAN
tracks. Enhancements could include adding
landscaping to the median and sidewalks
and filling any gaps in the sidewalks. Adding
landscaping as a buffer between the railroad
tracks and the roadway will add to the visual
appeal of the roadway. In addition, pedestrian
bridges could be added to connect the airport
to the Guasti District.

3.3.2 Non-motorized Circulation
in the Vicinity
The City is in the process of drafting its Active
Transportation Master Plan. However, the City’s
General Plan Mobility Element provides insights
into the current and proposed bike facilities
in the City, as shown in Figure 18. There are
several existing bike facilities north of the
Specific Plan Area. These include bike lanes
along the Ontario Mills Parkway and Del Norte
Avenue. There are several proposed facilities in
the vicinity of the Specific Plan Area, including
along Guasti Road, Archibald Avenue, and
Vineyard Avenue. A proposed multipurpose
trail is contemplated along Cucamonga Creek
that will eventually connect to the regional trail
system. However, the trail currently terminates at
the Ontario Mills Parkway. If extended to Guasti
Road, this trail can become an important non-
motorized link between the Guasti District and
the rest of the City.

The pedestrian circulation around the Specific
Plan Area is provided by sidewalks that currently
have gaps at certain locations. The development
of the Specific Plan Area will include sidewalks
around the site and development of a plaza
at the intersection of Holt Boulevard and
Guasti Road. However, to enhance pedestrian
connectivity, it is essential to envision the
roadways in the vicinity with wider, shaded
sidewalks, as described above in Potential
Roadway Improvements in the Vicinity and
reflected in Figures 16 and 17.

Figure 18: Multipurpose Trails and Bikeways
Source: City of Ontario, The Ontario Plan 2050, Mobility Element 659
30 EMPIRE GROVES SPECIFIC PLAN
Figure 19: Transit Access
Source: City of Ontario, The Ontario Plan 2050, Mobility Element Figure 20: BRT Route
Source: Guida Geospatial Solutions; San Bernardino County Transportation Authority (SBCTA), West Valley Connector Project, Phase 1.
660
31 03 | DEVELOPMENT PLAN

3.3.3 Transit Access
The Specific Plan Area enjoys ample access to a
variety of transit facilities (see Figure 19).

Metrolink and Amtrak Stations: Two
Metrolink lines serve the Specific Plan Area.

South of the site is the Riverside Line, which
provides east–west service between downtown
Los Angeles and Riverside. North of the site is
the San Bernardino Line, which provides east–
west commuter rail service between downtown
Los Angeles and San Bernardino.

The East Ontario Metrolink Station provides
access to the Riverside Line and is the nearest
Metrolink station to the Specific Plan Area,
approximately 11 minutes by car. This station is
on East Francis Street and can be reached via
South Haven Avenue. The Ontario Station, an
Amtrak station, is approximately 8 minutes away
by car from the Specific Plan Area. It is also a
proposed Metrolink station for the Riverside
Line. This station is on East Emporia Street and
can be conveniently reached by taking Euclid
Avenue via East Transit Street.

Several stations are located north of the Specific
Plan Area along the San Bernardino Line. The
closest ones are the Rancho Cucamonga and
Upland Stations.

BRT Routes: The West Valley Connector Bus
Rapid Transit (BRT), which is under construction,
is managed by the San Bernardino County
Transit Authority. Phase I of the project is 19
miles and will upgrade a portion of existing
Route 61, which runs along Holt Boulevard,
adding approximately 3.5 miles as center-
running, dedicated bus-only lanes (see Figure
20). There will be 21 stations in Phase I that will
provide an improved transit connection to ONT
and help build transit connectivity by linking
ONT, two Metrolink lines (San Bernardino and
Riverside), and multiple major activity centers
along the route, including Ontario Mills and
Victoria Gardens. Headways will be 10 minutes
in the peak commute period and 15 minutes
off-peak, providing a high level of service to the
community.

It will traverse Airport Drive with its nearest
station to the Specific Plan Area situated at the
junction of Vineyard Avenue and Holt Boulevard.

Although there are stations along Airport Drive,
they are presently inaccessible due to a railroad
between the Specific Plan Area and Airport
Drive. A potential pedestrian bridge linking
Guasti Road to Airport Drive would establish a
direct and convenient route from Airport Drive
to the Specific Plan Area.

Ontario Airport Loop: The Ontario Airport
Loop project is a proposed tunnel to ONT
that will feature a bi-directional system where
passengers traveling to and from ONT will be
transported in autonomous, zero-emission
vehicles on an “on-demand” basis between
the Cucamonga Metrolink Station and airport
terminals. The project is considering the
possibility of utilizing an elevated loop system to
traverse Airport Drive, with potential stops along
this route.

Metro Gold Line Extension: The current Metro
Gold Line extension will reach San Bernardino
County with new stations in the cities of
Glendora, San Dimas, La Verne, Pomona,
Claremont, and Montclair. The current terminus
planned for Montclair, however, is just 6 miles
short of ONT—a critical airport and economic
driver for San Bernardino, Riverside, and parts of
Los Angeles Counties. Metro Rail from Glendora
to Pomona is currently under construction and
is expected to be completed by 2025. Extension
of the rail service further east from Pomona to
Montclair is expected to be completed by 2028.
661
32 EMPIRE GROVES SPECIFIC PLAN

3.4 Infrastructure Plan

3.4.1 Potable Water
The City’s ultimate potable water system will
consist of five pressure zones. The Specific Plan
Area is located within the 1212 Pressure Zone.

Water service to the Specific Plan Area will
be provided by the City. Currently, there are
water mains in the vicinity of the Specific Plan
Area. There is an existing 12-inch water main in
Guasti Road along the project frontage, and an
existing 8-inch water main in Holt Boulevard
along the project frontage, both available for
connection. The future potable water system
to serve the City is shown in Figure 21. Sizing
and alignment of the potable water lines will be
consistent with the City of Ontario Potable Water
System Master Plan and/or a City-approved
hydraulic analysis.

Figure 21: Specific Plan Area Potable Water Plan
662
33 03 | DEVELOPMENT PLAN

3.4.2 Sewer
The project will connect to existing sewer mains.

Sewer mains are maintained by the City of
Ontario and wastewater is treated at the Inland
Empire Utilities Agency (IEUA) Treatment Plant.

Several regional trunk sewers collect sewage
generated in the city and transport it to IEUA’s
Regional Plant No. 1 and Regional Plant No. 5
for treatment. The City of Ontario is divided into
eight major sewersheds. The Specific Plan Area
is in Sewershed 3. Sewage is collected by the
City’s system and generally flows from north
to south towards the IEUA Upland Interceptor.

The City’s Sewer Master Plan is currently being
updated.

All required sewer infrastructure will be
consistent with the approved master plan.

There is an existing sewer main located in
Holt Boulevard available for connection. The
sizing and alignment of existing and proposed
sewer lines are shown in Figure 22. Sizing and
alignment of the sewer lines will be consistent
with the City of Ontario Sewer Master Plan and/
or a City-approved hydraulic analysis.

3.4.3 Recycled Water Plan
Currently, there are recycled water mains in
the vicinity of the Specific Plan Area, with a
point of connection located at the intersection
of Guasti Road and Holt Boulevard. Recycled
water is provided to the City by the IEUA from its
four wastewater reclamation plants. The entire
Figure 22: Specific Plan Area Sewer Plan
663
34 EMPIRE GROVES SPECIFIC PLAN
Specific Plan Area is within the City’s master-
planned 1299 Pressure Zone.

Recycled water infrastructure improvements
for the Specific Plan Area require the planning,
design, and construction of a 1299 Pressure
Zone Recycled Water Master Plan main, which
includes installing an 8-inch recycled water
main in Guasti Road that connects to the 8-inch
recycled water main in Convention Center Way,
north of Holt Boulevard, and extends south in
Guasti Road, ending east of the Cucamonga
Creek Channel. The sizing and alignment of
existing and proposed recycled water lines are
shown in Figure 23. Sizing and alignment of the
recycled water lines will be consistent with the
City of Ontario Recycled Water System Master
Plan and/or a City-approved hydraulic analysis.

3.4.4 Stormwater/Drainage
NPDES Compliance
Drainage within the project area will be
conveyed via a system of on-site drains to the
southeast corner of the site where it will enter
a series of underground detention / infiltration
chambers. These chambers will provide
attenuation of peak flows as well as detaining
stormwater for infiltration/treatment as required
by the most current San Bernardino County
Area-Wide MS4 permit. Flows exceeding the
required treatment volume will be conveyed
southeasterly across Guasti Road to the existing
108” storm drain pipe, which in-turn conveys
flows to Cucamonga Creek.

Figure 23: Specific Plan Area Recycled Water Plan
664
35 03 | DEVELOPMENT PLAN
All Priority Land Use (PLU) areas within the
Specific Plan Area shall comply with the
statewide Trash Provisions adopted by the State
Water Resources Control Board (SWRCB) and
trash requirements in the most current San
Bernardino County Area-Wide MS4 Permit.

Activities resulting in one acre or more land
disturbances are required to obtain coverage
under the Construction General Permit (CGP).

The owner is the legally responsible person
(LRP) of the site and shall have a Stormwater
Pollution Prevention Plan (SWPPP) developed
and submitted through the SMARTS website
at https://smarts.waterboards.ca.gove/smarts/
faces/SwSmartslogin.xhtml.

3.4.5 Dry Utilities
Electricity: Southern California Edison provides
electricity to the Specific Plan Area and
maintains aboveground power lines within the
area. During construction, electrical lines will be
placed underground. Utilities and maintenance
facilities for the hotel will be installed on the first level of below-grade parking at the northern
portion of the site.

Natural Gas: The Southern California Gas
Company provides natural gas to the Specific
Plan Area. As required, additional points of
connection to existing gas lines will be provided.

Telephone: Telephone service is offered
regionally by telecommunications providers,
such as AT&T and Verizon. Infrastructure
supporting telephone services will be provided
and installed along with other utilities.

Cable: Cable television services are provided
to the Specific Plan Area by local area cable
providers, such as Time Warner Cable.

Infrastructure supporting cable television
services will be provided and installed along
with other utilities.

Solid Waste Collection: Solid waste collection
service will be contracted by the applicant with
the City of Ontario Integrated Waste Division. All
solid waste collected on-site will be required to
comply with federal, state, and local regulations.

Fiber Optic: Fiber Optic broadband
communication service will be offered to
the Specific Plan area by Ontario Fiber.

Infrastructure supporting fiber optic service will
be installed.

3.5 Community Services

3.5.1 Fire Protection Services
The Specific Plan Area is served by the Ontario
Fire Department. The nearest fire stations to the
site are Fire Station No. 8 and Fire Station No.

10. Both fire stations are located within 5 miles
from the Specific Plan Area, and each house an
engine company and paramedic.

The applicant will work with the Ontario Fire
Department, the Ontario Police Department,
Public Works, and other City departments to
provide appropriate access to the Specific Plan
Area in a satisfactory manner that is feasible.

3.5.2 Police Services
The Ontario Police Department provides police
protection services in the City of Ontario and
will serve the Specific Plan Area. The main
police station is located at 2500 S. Archibald
Avenue, approximately 5.3 miles south of the
Specific Plan Area.
665
36 04 Development
Standards
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37 04 | DEVELOPMENT STANDARDS

4.1 Introduction
Development standards provide the zoning
regulations for the Specific Plan Area, while the
design guidelines provide design guidance. It is
important to make a clear distinction between
the two. Development standards are mandatory
and are generally quantitative, objective, and
measurable in nature, and use the word “shall.”
Design guidelines are suggestions and are
generally qualitative and subjective in nature.

They generally use the words “should” or “may.”

4.2 Development
Standards

4.2.1 Site Development

4.2.1.1 Setbacks
Building setbacks for the Specific Plan Area are
shown in Table 2.

Projections and Elements into Setbacks:
• Architectural projections and overhangs
may encroach into a setback up to a
maximum of 3 feet. However, any such
overhang or projection that is permanent in
nature should have a minimum overhead
clearance of 12 feet. With the exception of
balconies which shall be allowed to encroach
up to 5’ . However, architectural projections
shall not encroach into the public right- of-
way.
• Landscape and hardscape design
elements and features such as trees,
benches, trellises, fountains, planter boxes,
shade structures, fountains, movable/fixed
seating, seating walls and steps, boundary
walls, and fences are allowed in setback
areas. However, at least 6 feet of clear
space must be maintained for pedestrian
movement.
• Outdoor eating areas are allowed within
the setback areas. (Note: the setbacks are
from ROW, there is pedestrian movement in
the ROW already contemplated)

4.2.1.2 Height
The maximum building height will be regulated
by Federal Aviation Administration and
the Ontario International Airport Land Use
Compatibility Plan, (ONT ALUCP). The allowable
building heights for the Specific Plan boundary
range from 110 to 140 feet in height. Any
structure that is over 90 feet in height will be
required to file an FAA Form 7460-1, Notice of
Proposed Construction or Alteration and receive
a determination of “No Hazard” consistent with
the policies and criteria of the ONT ALUCP.

4.2.1.3 Floor Area Ratio
The Multimodal Mixed-use Area, which
encompasses the Specific Plan Area, allows for
approximately 553,000 square feet of lodging
and 1.9 million square feet of office/retail (refer
to 2.2.1, Multimodal Mixed-Use section). The
Specific Plan Area plans to use a portion of this
allocated square footage for the development of
Hospitality Mixed-Use in the project area (refer
to Table 1).

The total FAR of the entire Multimodal Mixed-
Use District shall not exceed 1.0.
• FAR is the ratio of a building’s total floor
area to the size of the piece of land upon
which it is built.
• The FAR excludes soft and hard
landscaped areas, subterranean parking,
mechanical equipment areas, vertical shafts,
and utility areas.
• The FAR includes covered outdoor areas.

4.2.1.4 Lot Coverage
The total lot coverage should not exceed 40
percent of the land area.
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38 EMPIRE GROVES SPECIFIC PLAN

SETBACKS TO PROPERTY BOUNDARY MINIMUM SETBACK
Guasti Road Building - 10 feet; Parking - 5 feet
Holt Boulevard Building - 5 feet; Parking - 5 feet
Cucamonga Channel-Interior Setback Building 10 feet; Parking - 5 feet Note: Balconies that are considered private open space, (see section 4.2.4.2 Private Open Spaces below) shall be allowed to encroach up to 5’ . Landscaping and water features for passive and active recreational activities are allowed in the setback areas. Temporary structures such as gazebos and other shade structures are also allowed in setback areas.

Table 2: Building Setbacks

4.2.2 Land Use Matrix
Table 3 lists allowable uses for Hotel and
Local-Serving Retail, indicating which uses are
permitted (P), and conditional review (C) within
the Hospitality Mixed Use of the Specific Plan.
• Permitted Use (P) can be established as
primary or secondary use without requiring
discretionary approval. This includes ancillary
or accessory uses that are typically incidental
to the main use on the premises.
• Conditionally Permitted Use (C) is
permitted upon the approval of a Conditional
Use Permit by the Zoning Administrator.
• A land use not listed in Table 3 shall be
considered a prohibited land use. For land
uses similar to those listed in Table 3, but
not expressly stated in this Specific Plan,
the Planning Director or his/her designee
shall be granted the authority to make a
determination of the applicability of similar
land uses.

4.2.3 Utilities

4.2.3.1 Mechanical Equipment
• Rooftop mechanical equipment shall
be securely fastened to the roof and fully
screened with architectural elements
consistent with the overall design of the
development.

4.2.4 Open Spaces

4.2.4.1 Public Open Spaces
Public open spaces include any sidewalk,
landscaping, plaza areas, patios, decks, water
features, or other passive recreational areas
open to public.
• Public gathering spaces shall be accessible
to adjacent uses and from public sidewalks.

4.2.4.2 Private Open Spaces
Private open spaces include any sidewalk,
walkways, landscaped areas, plaza areas, water
features, balconies, patios, decks and other
active or passive recreational areas open only to
the users of the development.
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39 04 | DEVELOPMENT STANDARDS

HOSPITALITY MIXED-USES ALLOWABLE USES NOTES
Hotel Uses
ATM P
Automobile Rental and Leasing Services C • No on-site vehicle storage allowed.

Banquet Halls and Conference Facilities P
Business Center P
Cafés and Restaurants (Alcohol sales not
permitted) P • Includes Bakeries and Coffee Shops.

Cafés and Restaurants (Alcohol sales
permitted) C • Includes Bakeries and Coffee Shops.

Child Day Care facilities C
Convenience Stores (Alcohol sales
not permitted) P
• Includes Sundry Shops.
• Catered towards guests.

Convenience Stores (Alcohol sales
permitted) C
• Includes Sundry Shops.
• Catered towards guests.

Day Spa and Massage studio C
Fitness Center and Gym P
Florist and Gift Shop P
Guest Services P • Includes Concierge, Baggage, and
Valet Services.

Hotel Administrative Offices P
Hotel Lodging P
Live Entertainment C • Includes Night Clubs, Dancing, VIP Rooms, and Similar Uses.

Lounges and Bars C • Includes Lounges, Bars, or Rooftop Bars.

Outdoor Dining Areas (Alcohol sales
not permitted) P
Outdoor Dining Areas (Alcohol sales
permitted) C
Wireless Telecommunications
Facilities C
• Includes integrated building design.
• Must be Roof-Mounted.
• See Chapter 5.03.420 for
Development Code.

Table 3: Allowable Land UsesLegend: Permitted Use (P), Conditional Use Permit (C) 669
40 EMPIRE GROVES SPECIFIC PLAN

HOSPITALITY MIXED-USES ALLOWABLE USES NOTES
Local-Serving Retail (Typical with Hospitality Mixed-Use) Antique Stores P
Art Gallery P • Includes Art Galleries or Art Supply
Stores.

Banking/ATM P
Automobile Rental and Leasing
Services C • No on-site vehicle storage allowed.

Beauty Services P
• Includes Barber Shops, Beauty
Salons, Nail Salons, Tanning Salons,
and other similar uses.

Beauty Supply Store P
Bicycle/Segway Rentals P
• Includes e-Bicycle and e-scooter
Rentals or similar personal recreation
devices.

Boutique or Specialty Wines and
Liquor Stores C
Brew Pub and Micro-brewery C
Business Center P • Includes Mail/Shipping services, e.g.

Fed Ex, UPS, and Amazon Locker.

Cafés and Restaurants (Alcohol sales
not permitted) P • Includes Bakeries and Coffee Shops.

Cafés and Restaurants (Alcohol sales
permitted) C • Includes Bakeries and Coffee Shops.

Clothing and Accessory Stores P
Convenience Stores (Alcohol sales
not permitted) P
• Includes Sundry Shops.
• Catered towards guests.

Convenience Stores (Alcohol sales
permitted) C
• Includes Sundry Shops.
• Catered towards guests.

Fast-Food Restaurants P • Drive-throughs not allowed.

Fitness Studio C
Food Kiosk P
• Includes two or more food or
beverage concession stands that
operate together as a commercial
establishment.
• Alcohol sales not permitted.

General Office P
• Includes office spaces related to
Administrative and Support Services,
Retail, Finance and Insurance Offices,
Management of Companies and
Enterprises, Travel agency/arrangements,
and Professional Services.

Legend: Permitted Use (P), Conditional Use Permit (C)
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41 04 | DEVELOPMENT STANDARDS
• Private open spaces can be located on
upper floors and rooftop.
• Balconies, if provided, shall have a
minimum area of 30 square feet and a
minimum dimension of 5 feet length and
width.
• As noted above in Table 2: Building
Setbacks, balconies shall be allowed to
encroach a maximum 5 feet into a required
front, side, or rear yard setback.

4.2.4.3 Applicable to Both Public and
Private Open Spaces
• Pedestrian zones designed to enhance
access to outdoor public amenities must be
identifiable by using robust, easy-to-maintain
surface materials, such as decorative
pavers or other comparable architectural
enhancements.
• Pedestrian areas should be compliant with
the Americans with Disabilities Act.
• Alternative sidewalk materials within public
right-of-way and for sidewalks used for
public access shall be subject to City review
and approval.

4.2.5 Parking

4.2.5.1 Off-Street Parking
• 1.5 parking spaces per every 1,000 square
feet of Hospitality Mixed-Use development
shall be provided. Utility areas, parking, and
covered outdoor areas shall be excluded
from parking calculations.
• Up to 100 percent of parking can be
provided as valet parking by a hospitality
mixed use project.
• Off-street parking design standards
and parking lot lighting shall comply with
Sections 6.03.045 and 6.03.050 of the Ontario
Development Code, respectively.
• Parking spaces specifically designated and
conveniently located for fuel-efficient vehicles shall be provided in conjunction with development projects
pursuant to current regulations contained in CALGreen
(California Code of Regulations Title 24, Part 11).
• A parking analysis shall be provided with the
entitlement package.
• Spillover parking may be provided off-site no more
than one-half mile away from the development’s main
entrance. Parking analysis and an agreement with
locations shall be provided.
• All parking facilities must have clearly designated
markings for individual parking stalls, drive aisles,
approach lanes, and maneuvering areas to facilitate
efficient traffic flow.
• Digital parking guidance signs shall be installed
for hotel parking to indicate the location of available parking spaces by level and assist in directing vehicles to available parking spaces.

4.2.5.2 Bike Parking
• Bicycle parking facilities, including bicycle racks,
lockers, and other secure facilities, shall be provided in conjunction with development projects pursuant to
current regulations contained in CALGreen (California
Code of Regulations Title 24, Part 11).
• All bicycle parking facilities shall have lighting that provides high visibility. Lighting shall be maintained in operational condition at all times.

4.2.5.3 Loading
• Off-street loading standards shall comply with
Section 6.03.055 of the Ontario Development Code.
• Each off-street loading space and its access shall be designed to avoid undue interference with the public
use of streets and private drives and shall not be part of the off-street parking area required for each particular use.
• Loading areas shall be screened, enclosed, and/or
located appropriately to minimize potential nuisances,
such as odor and noise.
• Loading areas shall be clearly marked as being
distinct from required parking spaces and aisles.
671
42 05 Design
Guidelines
672
43 05 | DESIGN GUIDELINES

5.1 Introduction
These guidelines establish a clear set of
qualitative guiding principles that form a basis
for the City of Ontario to review the Specific
Plan project. The guidelines serve two primary
purposes:

1. To establish high-quality design for new
development.

2. To facilitate the design review and planning
approval process relative to building
configuration and architecture that is
appropriate for this development.

The guidelines are not intended as a literal
requirement; instead, they serve as a framework
for the design review process and cover key
elements including building mass, entrances,
façade design and composition, roof forms,
materials, and colors. The City shall use the
guidelines as part of the formal design review
process, and qualitative findings shall be made
by the decision-making body demonstrating
such compliance.

5.2 Design Guidelines

5.2.1 Massing and Elevation
Treatment
• Building facades should avoid a continuous
single plane and break monotony by using at
least two planes.
• The bottom levels and the top two levels
may be treated differently in architectural
style compared to other floors to break
the monotony of elevation. See example in
Figure 24.
• Vertical elements should be used to
provide rhythm and continuity between the
floors. See example in Figure 25.

Figure 24: Elevation Treatment
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44 EMPIRE GROVES SPECIFIC PLAN
• To achieve good building articulation,
beyond the building facade and diversity
of planes, there should be at least one
additional color and one additional material
across an elevation.
• To minimize heat gain, shading devices
should be provided for glazed surfaces,
particularly on the east, south, and west
sides of the building. Shading can take the
form of recessed windows using colonnade-
type structure or devices fixed to the exterior
wall that are harmonious with the building
materials or color.
• Building massing shall consist of a mix of
building heights and incorporate vertical
plane breaks, changes in building/ridge
height, or other accent roof forms to create
visual interest.
• Free-standing architectural treatment
may be used in front of the building walls to
create layering.

Figure 25: Vertical Elements Providing Continuity and Rhythm • When used, parapet walls shall incorporate
side/rear elevation returns to preclude an
unfinished, “false front” appearance.
• Exposed downspouts and overflow holes
on building front facades are prohibited.
• All rooftop mounted equipment shall be
screened from public view using materials
complementary to those used on the main
structure (see Subsection 6.C.1.f, Functional
Elements).

5.2.2 Elevation Material
• The elevation materials should be durable
and require low maintenance.
• As far as possible, materials should be
selected that can be reused or recycled
easily at the end of their lives using existing
recycling systems.
• Efficient and right-sized building design
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45 05 | DESIGN GUIDELINES
should be used to minimize wastage of
materials.

5.2.3 Site Planning and
Circulation
The following site planning and circulation
design guidelines for hospitality mixed use
promote aesthetic quality, efficient land use,
and public safety. See Figure 26 for an example
illustrating safe ingress and egress options,
including designated entrances for emergency
vehicle and separate delivery access. The final
improvement plans reflecting the location and
details of these improvements will be reviewed
and approved by the City Engineer.
• Service and delivery/loading zones
should be separated from visitor, guest and
customer parking, and pedestrian walkways
where feasible. This helps reduce the risk
of accidents by keeping heavy vehicles and
delivery activities away from areas where
pedestrians and regular vehicles are present.
• Ensure that all areas are accessible to
emergency vehicles and personnel, with
clearly marked routes and entrances.
• The main access to the hotel as well as to
the hotel parking (basement levels 1 and 2)
is from Guasti Road. The main access to the
hotel will be full access with a traffic signal.
• Additional right-of-way may be required
to accommodate an additional left turn and
right turn lanes at intersection based on
required queue lengths per the Traffic Impact
Analysis/Specific Plan EIR.
• Additional traffic signals may be required
based on locations of future access points
and as identified in the Traffic Impact
Analysis/Specific Plan EIR.

Figure 26: Site Access
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46 EMPIRE GROVES SPECIFIC PLAN

5.2.4 Landscape Guidelines
The landscape will play an important role at
many levels, primarily to soften transitions from
the ground plane to the vertical plane; offer
screening from the adjacent neighborhood;
and add color and texture to the development.

Examples of landscaping can be seen in Figure
27 and Figure 28.

Below are general landscape guidelines.
• Standards for the provision and
maintenance of landscaping within the
Specific Plan Area shall comply with Section

6.05.010: Landscape Design Principles,
Section 6.05.045: Landscape Development
Standards, and Section 6.05.050: Landscape
Maintenance of the Ontario Development
Code.
• Trees and plant material should either be
native to Southern California or adaptive and
from regions with similar climates.
• Invasive plant species should be prohibited.
• All plants should be water-conserving,
drought-tolerant plants to the maximum
extent practical
• Trees, shrubs, hedges, and deciduous vines
should be used to minimize solar heat gain
during the summer and maximize heat gain
during the winter.
• Tree branches should be pruned to at least
7 feet from the ground for street trees.
• Landscaping should not obstruct
pedestrian movements and should be
designed in a way so as not to block visibility
of businesses and signage.
• Landscaping should not obstruct the
sightlines of motorist or pedestrians.

5.2.4.1 Paving Materials
Paving materials contribute significantly to
the overall outdoor experience. The style of
landscape, maintenance requirements, and the
specific purpose of the paved area should be
considered when selecting paving materials.
• Paving materials should complement
the architectural style as well as elevation
materials of the building.
• Paving materials should serve both
functionality and aesthetics. For example,
slip-resistant concrete, decorative pavers,
decomposed granite, or natural stone may
work well in walkways and garden paths
while bluestone, brick, or colored concrete
may be more welcoming for a patio.
• Materials should be chosen that withstand
weather conditions, foot traffic, and other
wear.
• A combination of paving materials should
be used to identify and define pedestrian
paths and to provide variety. Changes in
paving materials should be employed to
demarcate areas, for example, to separate
pedestrian walkways from other gathering
spaces.

Examples of paving materials are shown in
Figure 29.

5.2.3.2 Planting Materials
• Landscaping in the project area shall be
done in accordance with Section 6.05—
Landscaping, of the Ontario Development
Code.
• All landscaping in the Specific Plan Area
must be drought tolerant and California
friendly.
• Figure 30, Figure 31, and Figure 32
show examples of appropriate planting
materials that may be used for landscape
improvements within the Specific Plan Area.

5.2.5 Lighting
Effective site lighting is crucial for ensuring
safety, enhancing visibility, and promoting
energy efficiency in various environments. The
following guidelines outline best practices for
implementing a comprehensive lighting strategy
that addresses these goals. Adherence to these
principles helps create well-lit, secure, and
aesthetically pleasing spaces that meet the
needs of all users.
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47 05 | DESIGN GUIDELINES
Figure 27: Specific Plan Area Landscaping Examples
Figure 28: Rooftop Landscaping Elements
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48 EMPIRE GROVES SPECIFIC PLAN
Figure 29: Examples of Paving Materials
678
49 05 | DESIGN GUIDELINES
Figure 30: Shrubs and Ground Cover Palette
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50 EMPIRE GROVES SPECIFIC PLAN
Figure 31: Evergreen, Deciduous, Flowering, and Palm Tree Palette 680
51 05 | DESIGN GUIDELINES
The design, technology, and required
photometrics will be determined during the
final design stage. The fixture style, color and
material should be decided in conjunction with
other elements, such as benches and waste
receptacles, to create a coordinated look and
feel within the development. Below are some
guidelines for selection and placement of
lighting fixtures.
• Uniform lighting distribution should be
employed to reduce dark spots and improve
overall visibility.
• Adequate lighting should be provided
along pathways, walkways, and pedestrian
areas to ensure safe navigation. Use of low,
bollard-type lighting and/or landscape
accent lighting is encouraged, especially in
pedestrian areas.
• Lighting should be provided in all parking,
vehicular, and pedestrian circulation areas,
and loading and storage areas.
• Site lighting should not be directed off-site.

Ontario City CouncilApril 15, 2025

Ontario City Council
April 15, 2025