6.2.3 Manufacturer of Goods . If Vendor is also the manufacturer of any equipment included in the Goods, Vendor shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.
6.2.4 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Vendor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insuran ce required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Vendor or the City may withhold amounts sufficient to pay premium from Vendor payments. In the alternative, the City may suspend or terminate this Agreement.
6.2.5 Additional Insured . The City of Ontario , its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Vendor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
6.3 Insurance Endorsements . The insurance policies shall contain the following provisions, or Vendor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
6.3.1 General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Vendor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on 1104
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a primary and noncontributory basis for the benefit of the City, before the City ’s own primary insurance, deductible, or self-insurance shall be called upon to protect it as a named insured. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 6.2.2, any availabl e insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 6.3.1.
6.3.2 Automobile Liability . The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any insurance , deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Policy shall contain or be endorsed to contain such provisions. Notwithstanding the minimum limits set forth in Section
6.2.2, any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional ins ureds pursuant to this Section 6.3.2.
6.3.3 Workers’ Compensation and Employer’s Liability Coverage . The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Vendor.
6.3.4 All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City , its directors, officials , officers, employees, agents, and volunteers. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.
6.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation . All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement , or a waiver of any coverage normally provided by any insurance. All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, its officials, officers, employees, agents , and volunteers, or any other 1105
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additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
6.5 Deductibles and Self -Insurance Retentions . Any deductibles or self -insured retentions must be declared to and approved by the City. Vendor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Vendor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
6.6 Subcontractor Insurance Requirements . Vendor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Vendor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Vendor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
6.7 Acceptability of Insurers . Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.
6.8 Verification of Coverage . Vendor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
6.9 Reporting of Claims. Vendor shall report to the City, in addition to Vendor’s insurer, any and all insurance claims submitted by Vendor in connection with the Services under this Agreement.
7. INDEMNIFICATION.
7.1 Scope of Indemnity. To the fullest extent permitted by law, Vendor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlemen ts, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Vendor, its officials, officers, employees, subcontractors, consultants or agents arising out of or in connecti on with the Services, the Goods or this Agreement, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Vendor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole negligence or willful misconduct of the City.
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7.2 Additional Indemnity Obligations . Vendor shall defend, with counsel of City’s choosing and at Vendor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers.
In addition, Vendor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Vendor shall also reimburse City for the cost of any settle ment paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Vendor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Vendor’s obligation to indemnify shall survive expi ration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.
8. CALIFORNIA LABOR CODE
8.1 Prevailing Wages. Vendor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works ” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Vendor agrees to fully comply with such Prevailing Wage Laws. City shall provide Vendor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Vendor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Vendor’s principal place of business and at the project site. Vendor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Vendor shall therefore comply with such Labor Code sections to the fullest extent required by law.
8.2 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Vendor and all subcontractors must be registered with the Department of Industrial Relations.
Vendor shall maintain registration for the duration of this Agreement and require the same of any subcontractor. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
8.3 Compliance Monitoring . This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Vendor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor that affect Vendor’s performance of Services, including any delay, shall be Vendor’s sole responsibility. Any delay arising out of or resulting fr om such stop orders shall be considered Vendor caused delay and shall not be compensable by the City. Vendor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim 1107
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or liability arising out of stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor.
9. SAFETY.
Vendor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its s ervices, the Vendor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adeq uate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent acciden ts or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
10. ACCOUNTING RECORDS.
Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Vendor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) ye ars from the date of final payment under this Agreement.
11. TERMINATION OF AGREEMENT.
11.1 Grounds for Termination . City may, by written notice to Vendor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Vendor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Vendor shall be compensated only for those Services and Goods which have been adequately rendered to City, and Vendor shall be entitled to no further compensation. If terminated for cause because the Vendor refused or failed to deliver the Goods, the City may obtain Goods by whatever method it may deem expedient. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Goods, Vendor will be liable for and will pay the difference to City. Vendor may not terminate this Agreement except for cause.
The rights and remedie s of the City provided in this S ection shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
11.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Vendor to provide all finished or unfinished documents and data and other information of any kind prepared by Vendor in connection with the performance of the Services under this Agreement. Vendor shall be required to provide such document and other information within fifteen (15) days of the request.
11.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, goods and services similar to those terminated. 1108
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12. GENERAL PROVISIONS.
12.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Vendor:
Los Angeles Truck Center, LLC.
2429 S. Peck Road
Whittier, CA 90601
Attn: Louie Garcia, Regional Municipal Parts & Service Manager
City:
City of Ontario
303 East “B” Street
Ontario, CA 91764-4196
Attn: Manuel Rebolledo, Fleet Services Superintendent
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
12.2 Subcontracting. Vendor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
12.3 Governing Law; Government Code Claim Compliance . This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disput ed work, claims and/or changed conditions, Vendor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code cla ims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Vendor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Vendor shall be barred from bringing and maintaining a valid lawsuit against the City.
12.4 Time of Essence . Time is of the essence for each and every provision of this Agreement.
12.5 City’s Right to Employ Other Vendors. City reserves right to employ other Vendors in connection with the Goods and Services provided under this Agreement. 1109
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12.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
12.7 Assignment or Transfer. Vendor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transf erees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
12.8 Construction; References; Captions . Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Vendor include all personnel, employees, agents, and subcontractors of Vendor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
12.9 Amendment; Modification . No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
12.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
12.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section
12.7, there ar e no intended third party beneficiaries of any right or obligation assumed by the Parties.
12.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
12.13 Prohibited Interests. Vendor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Vendor, to solicit or secure this Agreement. Further, Vendor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Vendor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Vendor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City ’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
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12.14 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
12.15 Authority to Enter Agreement . Vendor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
12.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
12.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
SIGNATURES ON NEXT PAGE
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SIGNATURE PAGE FOR GOODS & SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND LOS ANGELES TRUCK CENTERS, LLC
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the day and year first above written.
CITY OF ONTARIO LOS ANGELES TRUCK CENTERS, LLC
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
Assistant City Clerk
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(BB&K 2024) Exhibit A-1 Goods and Services Agreement
EXHIBIT “A”
SCOPE OF SERVICES
Medium & Heavy-Duty Truck Parts and Repair
City of Ontario Fleet Services Department
Location: 1425 S. Bon View Ave, Ontario, CA 91761
1. Introduction
The City of Ontario Public Works Department is seeking proposals from authorized service centers and dealerships to provide parts and repair services for medium-duty and heavy-duty trucks. The service provider’s location must be within a 20-mile radius of the City of Ontario Public Works Yard, located at 1425 S. Bon View, Ontario, CA 91761.
2. Scope of Work
The selected service provider will be responsible for performing the following tasks:
A. Repair and Maintenance Services
• Routine maintenance, including oil changes, brake inspections, fluid replacements, and tune-ups.
• Engine diagnostics and repairs.
• Transmission and drivetrain servicing.
• Electrical system diagnostics and repairs.
• Suspension, steering, and alignment services.
• HVAC system repairs.
• Exhaust system repairs.
• DOT inspections and certifications.
• Any additional services required to maintain operational efficiency.
B. Parts Supply
• Supply of OEM and aftermarket parts.
• Inventory management and availability of critical parts. • Parts Invoices: Awarded Vendor(s) shall provide shall submit an itemized priced invoice to the City with each delivery and a return receipt for all returned items. Billing address shall be the same as the delivery address listed above. Credit statements shall be sent to the City within 5 business days of pick up. The City shall, within 30 days of receiving such statement, review the statement and pay all approved charges thereon. • Delivery: Orders of products will be on an as needed basis to replenish the City’s inventory to an expectable level or for urgent use throughout the term(s) of the contract.
Vendor must deliver to:
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(BB&K 2024) Exhibit B-1 Goods and Services Agreement
EXHIBIT “B”
SCHEDULE OF SERVICES
REPAIR SERVICES
Requests for repairs shall only be requested by the following Fleet Services staff.
► Fleet Services Manager
► Fleet Services Supervisor
► Fleet Services Coordinator
Arrangements will be made for the delivery and/or pickup of vehicle to and from Vendor’s site at time of request for repairs and when work is completed. The invoice emailed to [email protected] within 24 business hours of delivery.
PARTS 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 to [email protected] within 24 business hours of delivery.
As determined by the City, the delivery time frames are M -F 7:00 a.m. and 5:30 p.m., provided that special-order items may be exempt from such a time frame.
DELIVERY LOCATION:
Site Address
Fleet Services 1425 South Bon View Avenue., CA 91761
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(BB&K 2024) Exhibit C-1 Goods and Services Agreement
EXHIBIT “C”
COMPENSATION
Description Rate / Markup / Discount
Labor Rate (per hour) $ 184.00
Parts Markup (% over cost) %
Parts Discount (% off retail) _21-58 %
Misc. Materials Markup (%) %
Misc. Materials Discount (%) _21-58 %
Pick-Up & Delivery Fee (per trip) $ N/A
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(BB&K 2024) - 1 - Goods and Services Agreement
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
CITY OF ONTARIO
GOODS & SERVICES AGREEMENT
This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California (“City”) and Rush Truck Centers of California , Inc. a C- Corporation with its principal place of business at 14490 Slover Ave., Fontana, CA 92337 . (“Vendor”). City and Vendor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. Vendor desires to perform and assume responsibility for the provision of certain services and goods required by the City on the terms and conditions set forth in this Agreement.
Vendor represents that it is experienced in providing similar services and goods to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California and that is familiar with and understands the needs of City.
B. City desires to engage Vendor to sell to City the materials and/or equipment and/or render such services as more particularly described in this Agreement.
TERMS
1. SCOPE OF SERVICES.
1.1 General Scope of Services. Vendor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the Medium & Heavy-Duty Truck Parts & Repairs Services (“Services”) which are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
1.2 Goods. Vendor agrees to sell to City and City agrees to purchase the materials and/or equipment (“Goods”) as specified and per the specifications attached hereto and incorporated herein as Exhibit “A.” Unless specifically stated otherwise, the Goods shall be new and unused and of the current production year.
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2. TERM.
2.1 The term of this Agreement shall be from July 1, 2025, to June 30, 2028, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms.
Vendor shall provide all Goods and complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the work.
3. FEES AND PAYMENTS.
3.1 Compensation. Vendor shall receive compensation, including authorized reimbursements, for all Goods provided and Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Nine Hundred Thousand Dollars and Zero Cents ($900,000) without written approval of City’s Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2 Payment of Compensation . Vendor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Vendor and Goods provided. The statement shall describe the amount of Services and Goods provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all non-disputed and approved charges thereon.
3.3 Reimbursement for Expenses. Vendor shall not be reimbursed for any expenses unless authorized in writing by City.
3.4 Extra Work. At any time during the term of this Agreement, City may request that Vendor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Goods and Services, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Vendor shall not perform, nor be compensated for, Extra Work without written authorization from City ’s Representative.
3.5 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. Vendor shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Vendor 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 Vendor is not entitled: (1) Vendor shall immediately notify the City and the financial institution; (2) Vendor shall not withdraw any of the funds which were erroneously deposited or to which Vendor is not entitled; an d (3) Vendor 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 Vendor is not entitled.
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4. RESPONSIBILITIES OF VENDOR.
4.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Vendor or under its supervision. Vendor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Vendor on an independent contractor basis and not as an employee. Vendor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Vendor shall also not be employees of City and shall at all times be under Vendor’s exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Vendor or any of Vendor’s officers, employees or agents, except as set forth in this Agreement. Vendor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of providing Goods and Services under this Agreement and as required by law. Vendor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
4.2 Schedule of Services.
4.2.1 Vendor shall perform the Services and provide Goods expeditiously, within the term of this Agreement, and in accordance with the Schedule of Goods and Services set forth in Exhibit “B” attached hereto and incorporated herein by reference (“Performance time”). Upon request of City, Vendor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Goods and Services. Vendor agrees that if the Goods are not provided and/or the Services are not completed within the Performance Time, it is understood, acknowledged and agreed that the City will suffer damage.
4.2.2 Neither City nor Vendor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non - performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on th e services, only to the extent such strikes and other organized labor action are beyond the control of Vendor and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or qua rantine rest rictions. For purposes of this S ection, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Agreement.
4.2.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Vendor to any additional compensation.
Notwithstanding the foregoing in this section, the City may still te rminate this Agreement in accordance with the termination provisions of this Agreement. 1118
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4.3 Conformance to Applicable Requirements. All work prepared by Vendor shall be subject to the approval of City.
4.4 Acceptance. The Goods shall be received subject to City’s inspection and right of rejection. The Goods shall not be considered accepted until inspection, testing and/or use of the Goods is found to be in accordance with the City’s specifications. Final inspection of the Goods shall be at the location specified herein, unless otherwise agreed in writing. If the Goods are found at any time to be defective in material or workmanship, or otherwise not in conformance with specifications, City shall have the right, in addition to any other rights which it may have under warranties or otherwise, to reject such Goods in whole or in part. Rejected Goods shall be held at Vendor’s risk for a reasonable time thereafter and shall be returned or disposed of at Vendor’s expense. No rejected Goods shall be replaced by Vendor without written instruction or authorization from City.
4.5 Coordination of Services . Vendor agrees to work closely with City staff in the performance of Services and shall be available to City ’s staff, consultants and other staff at all reasonable times.
4.6 Standard of Care; Performance of Employees. Vendor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Vendor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services as signed to them. Vendor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City business license, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Vendor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Vendor’s failure to comply with the standard of care provided for herein. Any employee of the Vendor or its sub-Vendors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed by the Vendor and shall not be r e-employed to perform any of the Services provided under this Agreement.
4.7 Warranty. In addition to all warranties which may be provided by law, Vendor warrants that the Goods delivered hereunder shall, (a) be free from defect of material or workmanship and conform strictly to the specifications, drawings, or sample specified or furnished; (b) conform to drawings, plans, specifications, samples or other descriptions furnished, specified, accepted or approved by City; and (c) be merchantable and fit for the purposes intended. The warranty shall be for a period of one (1) year, or such longer period as provided by a manufacturer’s warranty or as agreed to by Vendor and City, from the date of final written acceptance of the Goods by City. This warranty shall survive any inspection, delivery, acceptance, or payment by City of the Goods. Vendor, at its own expense, shall repair or replace, at the option of City, any defective Goods within two (2) business days after receipt of notice from City or within four (4) hours in case of emergency, as determined by City. Vendor also warrants that the Goods are free and clear of all liens and encumbrances whatsoever, that Vendor is conveying good and marketable title to same, and that Vendor owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Vendor 1119
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agrees to indemnify, defend and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.
4.8 Reserved.
4.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Vendor may be required to do, or respecting the size of any payment to Vendor during the performance of this Contract, Vendor shall continue to perform the Work while said dispute is decided by the City. If Vendor disputes the City’s decision, Vendor shall have such remedies as may be provided by law.
4.10 Laws and Regulations; Employee/Labor Certifications . Vendor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner a ffecting its performance under this Agreement , including all Cal/OSHA requirements, and shall give all notices required by law. Vendor shall be liable for all violations of such laws and regulations in connection with this Agreement. If the Vendor performs any work knowing it to be contrary to such laws, rules and re gulations and without giving written notice to the City, Vendor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Vendor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising ou t of any failure or alleged failure to comply with such laws, rules or regulations.
4.10.1 Employment Eligibility; Vendor. By executing this Agreement, Vendor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Vendor. Vendor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Vendor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent feder al work authorization program operated by the United States D epartment of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Vendor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Vendor’s compliance with the requirements provided for in Section 4.10 or any of its sub-sections.
4.10.2 Employment Eligibility; Subcontractors, and Consultants . To the same extent and under the same conditions as Vendor, Vendor shall require all of its subcontractors, and consultants performing any work relating to this Agreement to make the same verifications and comply with all requirements and restrictions provided for herein. 1120
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4.10.3 Employment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Vendor verifies that they are a duly authorized officer of Vendor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Vendor or its subcontractors, or consultants to meet any of the requirements provided for in Sections 4.10.1 or 4.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Vendor under Section 4.10.2); or (3) failure to immediately remove from this contract any person found not to be in compliance with such requirements.
4.10.4 Labor Certification. By its signature hereunder, Vendor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
4.10.5 Equal Opportunity Employment . Vendor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Vendor shall also comply with all relevan t provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
4.10.6 Air Quality. Vendor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Vendor shall specifically be aware of the CARB limits and requirements ’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Vendor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Vendor, its subcontractors, or others for whom Vendor is responsible under its indemnity obligations provided for in this Agreement.
4.10.7 Water Quality.
4.10.7.1 Management and Compliance . To the extent applicable, Vendor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000 -14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Santa Ana Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of polluta nts, as that term is used in the Porter -Cologne Water Quality Control Act, to any ground or surface water in the State.
4.10.7.2 Liability for Non -Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Vendor or City to penalties, fines, or additional regulatory requirements. Vendor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, 1121
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pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Vendor’s non - compliance with the laws, regulations and policies described in this Section, unless such non - compliance is the result of the sole negligence or willful misconduct of the City, its officials, officers, agents, employees or authorized volunteers.
4.10.7.3 Training. In addition to any other standard of care requirements set forth in this Agreement, Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Vendor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Vendor with a list of training programs that meet the requirements of this paragraph.
5. PROJECT MANAGEMENT
5.1 City’s Representative . The City hereby designates Manuel Rebolledo, Fleet Services Superintendent, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Vendor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
5.2 Vendor’s Representative . Vendor hereby designates Joseph Guevara , Aftermarket Sales Representative, or his or her designee, to act as its representative for the performance of this Agreement (“Vendor’s Representative”). Vendor’s Representative shall have full authority to represent and act on behalf of the Vendor for all purposes under this Agreement.
The Vendor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all work required under this Agreement.
6. INSURANCE.
6.1 Time for Compliance . Vendor shall not commence w ork under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Vendor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.
6.2 Minimum Requirements. Vendor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Vendor, its agents, representatives, employees or subcontractors. Vendor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
6.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability : Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability : Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required 1122
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by the State of California and Employer ’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another.
6.2.2 Minimum Limits of Insurance. Vendor shall maintain limits no less than: (1) General Liability: $2,000,000 MINIMUM; per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 MINIMUM; per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 MINIMUM; per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
6.2.3 Manufacturer of Goods . If Vendor is also the manufacturer of any equipment included in the Goods, Vendor shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.
6.2.4 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Vendor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Vendor or the City may withhold amounts sufficient to pay premium from Vendor payments. In the alternative, the City may suspend or terminate this Agreement.
6.2.5 Additional Insured . The City of Ontario , its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Vendor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
6.3 Insurance Endorsements . The insurance policies shall contain the following provisions, or Vendor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
6.3.1 General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Vendor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on 1123
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a primary and noncontributory basis for the benefit of the City, before the City ’s own primary insurance, deductible, or self-insurance shall be called upon to protect it as a named insured. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 6.2.2, any availabl e insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 6.3.1.
6.3.2 Automobile Liability . The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any insurance , deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Policy shall contain or be endorsed to contain such provisions. Notwithstanding the minimum limits set forth in Section
6.2.2, any available insurance proceeds in excess of the specified minimu m limits of coverage shall be available to the parties required to be named as additional ins ureds pursuant to this Section 6.3.2.
6.3.3 Workers’ Compensation and Employer’s Liability Coverage . The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Vendor.
6.3.4 All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City , its directors, officials , officers, employees, agents, and volunteers. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.
6.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation . All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement , or a waiver of any coverage normally provided by any insurance. All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, its officials, officers, employees, agents , and volunteers, or any other 1124
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additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
6.5 Deductibles and Self -Insurance Retentions . Any deductibles or self -insured retentions must be declared to and approved by the City. Vendor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Vendor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
6.6 Subcontractor Insurance Requirements . Vendor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Vendor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Vendor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
6.7 Acceptability of Insurers . Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.
6.8 Verification of Coverage . Vendor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
6.9 Reporting of Claims. Vendor shall report to the City, in addition to Vendor’s insurer, any and all insurance claims submitted by Vendor in connection with the Services under this Agreement.
7. INDEMNIFICATION.
7.1 Scope of Indemnity. To the fullest extent permitted by law, Vendor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlemen ts, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Vendor, its officials, officers, employees, subcontractors, consultants or agents arising out of or in connecti on with the Services, the Goods or this Agreement, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Vendor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole negligence or willful misconduct of the City.
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7.2 Additional Indemnity Obligations . Vendor shall defend, with counsel of City’s choosing and at Vendor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers.
In addition, Vendor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Vendor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Vendor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Vendor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.
8. CALIFORNIA LABOR CODE
8.1 Prevailing Wages. Vendor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works ” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Vendor agrees to fully comply with such Prevailing Wage Laws. City shall provide Vendor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Vendor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Vendor’s principal place of business and at the project site. Vendor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Vendor shall therefore comply with such Labor Code sections to the fullest extent required by law.
8.2 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Vendor and all subcontractors must be registered with the Department of Industrial Relations.
Vendor shall maintain registration for the duration of this Agreement and require the same of any subcontractor. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
8.3 Compliance Monitoring . This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Vendor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor that affect Vendor’s performance of Services, including any delay, shall be Vendor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considere d Vendor caused delay and shall not be compensable by the City. Vendor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim 1126
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or liability arising out of stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor.
9. SAFETY.
Vendor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its s ervices, the Vendor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequat e facilities for the proper inspection and maintenance of all safety measures.
10. ACCOUNTING RECORDS.
Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Vendor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) ye ars from the date of final payment under this Agreement.
11. TERMINATION OF AGREEMENT.
11.1 Grounds for Termination . City may, by written notice to Vendor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Vendor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Vendor shall be compensated only for those Services and Goods which have been adequately rendered to City, and Vendor shall be entitled to no further compensation. If terminated for cause because the Vendor refused or failed to deliver the Goods , the City may obtain Goods by whatever method it may deem expedient. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Goods, Vendor will be liable for and will pay the difference to City. Vendor may not terminate this Agreement except for cause.
The rights and remedie s of the City provided in this S ection shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
11.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Vendor to provide all finished or unfinished documents and data and other information of any kind prepared by Vendor in connection with the performance of the Services under this Agreement. Vendor shall be required to provide such document and other information within fifteen (15) days of the request.
11.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, goods and services similar to those terminated. 1127
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12. GENERAL PROVISIONS.
12.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Vendor:
Rush Truck Centers of California, Inc.
14490 Slover Ave
Fontana, CA 92337
Attn: Joseph Guevara, Aftermarket Sales Representative
City:
City of Ontario
303 East “B” Street
Ontario, CA 91764-4196
Attn: Manuel Rebolledo, Fleet Services Superintendent
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate not ice on the date actual notice occurred, regardless of the method of service.
12.2 Subcontracting. Vendor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
12.3 Governing Law; Government Code Claim Compliance . This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disput ed work, claims and/or changed conditions, Vendor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the G overnment Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Vendor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Vendor shall be barred from bringing and maintaining a valid lawsuit against the City.
12.4 Time of Essence . Time is of the essence for each and every provision of this Agreement.
12.5 City’s Right to Employ Other Vendors. City reserves right to employ other Vendors in connection with the Goods and Services provided under this Agreement. 1128
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12.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
12.7 Assignment or Transfer. Vendor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transf erees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
12.8 Construction; References; Captions . Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Vendor include all personnel, employees, agents, and subcontractors of Vendor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
12.9 Amendment; Modification . No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
12.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
12.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section
12.7, there ar e no intended third party beneficiaries of any right or obligation assumed by the Parties.
12.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
12.13 Prohibited Interests. Vendor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Vendor, to solicit or secure this Agreement. Further, Vendor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Vendor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Vendor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City ’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
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12.14 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
12.15 Authority to Enter Agreement . Vendor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
12.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
12.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
SIGNATURES ON NEXT PAGE
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SIGNATURE PAGE FOR GOODS & SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND RUSH TRUCK CENTERS OF CALIFORNIA, INC.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the day and year first above written.
CITY OF ONTARIO RUSH TRUCK CENTERS OF CALIFORNIA,
INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
Assistant City Clerk
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(BB&K 2024) Exhibit A-1 Goods and Services Agreement
EXHIBIT “A”
SCOPE OF SERVICES
MEDIUM & HEAVY-DUTY TRUCK PARTS & REPAIRS
City of Ontario Fleet Services Department
Location: 1425 S. Bon View Ave, Ontario, CA 91761
1. Introduction
The City of Ontario Public Works Department is seeking proposals from authorized service centers and dealerships to provide parts and repair services for medium-duty and heavy-duty trucks. The service provider’s location must be within a 20-mile radius of the City of Ontario Public Works Yard, located at 1425 S. Bon View, Ontario, CA 91761.
2. Scope of Work
The selected service provider will be responsible for performing the following tasks:
A. Repair and Maintenance Services
• Routine maintenance, including oil changes, brake inspections, fluid replacements, and tune-ups.
• Engine diagnostics and repairs.
• Transmission and drivetrain servicing.
• Electrical system diagnostics and repairs.
• Suspension, steering, and alignment services.
• HVAC system repairs.
• Exhaust system repairs.
• DOT inspections and certifications.
• Any additional services required to maintain operational efficiency.
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(BB&K 2024) Exhibit B-1 Goods and Services Agreement
EXHIBIT “B”
SCHEDULE OF SERVICES
REPAIR SERVICES
Requests for repairs shall only be requested by the following Fleet Services staff. ► Fleet Services Manager
► Fleet Services Supervisor
► Fleet Services Coordinator
Arrangements will be made for the delivery and/or pickup of the vehicle to and from Vendor’s site at time of request for repairs and when work is completed. The invoice emailed to [email protected] within 24 business hours of delivery.
PARTS 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 to [email protected] within 24 business hours of delivery.
As determined by the City, the delivery time frames are M-F 7:00 a.m. and 5:30 p.m., provided that special-order items may be exempt from such a time frame.
DELIVERY LOCATION:
Site Address
Fleet Services 1425 South Bon View Avenue., CA 91761
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(BB&K 2024) Exhibit C-1 Goods and Services Agreement
EXHIBIT “C”
COMPENSATION
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(BB&K 2024) - 1 - Goods and Services Agreement
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
CITY OF ONTARIO
GOODS & SERVICES AGREEMENT
This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California (“City”) and SVT FLEET, LLC, a S-Corporation with its principal place of business at 509 Bateman Circle., Corona, CA 92878. (“Vendor”). City and Vendor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. Vendor desires to perform and assume responsibility for the provision of certain services and goods required by the City on the terms and conditions set forth in this Agreement.
Vendor represents that it is experienced in providing similar services and goods to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California and that is familiar with and understands the needs of City.
B. City desires to engage Vendor to sell to City the materials and/or equipment and/or render such services as more particularly described in this Agreement.
TERMS
1. SCOPE OF SERVICES.
1.1 General Scope of Services. Vendor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the Medium & Heavy-Duty Truck Parts & Repairs Services (“Services”) which are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
1.2 Goods. Vendor agrees to sell to City and City agrees to purchase the materials and/or equipment (“Goods”) as specified and per the specifications attached hereto and incorporated herein as Exhibit “A.” Unless specifically stated otherwise, the Goods shall be new and unused and of the current production year.
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2. TERM.
2.1 The term of this Agreement shall be from July 1, 2025, to June 30, 2028, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms.
Vendor shall provide all Goods and complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the work.
3. FEES AND PAYMENTS.
3.1 Compensation. Vendor shall receive compensation, including authorized reimbursements, for all Goods provided and Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Four Hundred Fifty Thousand Dollars and Zero Cents ($450,000) without written approval of City’s Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2 Payment of Compensation . Vendor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Vendor and Goods provided. The statement shall describe the amount of Services and Goods provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all non-disputed and approved charges thereon.
3.3 Reimbursement for Expenses. Vendor shall not be reimbursed for any expenses unless authorized in writing by City.
3.4 Extra Work. At any time during the term of this Agreement, City may request that Vendor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Goods and Services, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Vendor shall not perform, nor be compensated for, Extra Work without written authorization from City ’s Representative.
3.5 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. Vendor shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Vendor 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 Vendor is not entitled: (1) Vendor shall immediately notify the City and the financial institution; (2) Vendor shall not withdraw any of the funds which were erroneously deposited or to which Vendor is not entitled; and (3) Vendor 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 Vendor is not entitled.
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4. RESPONSIBILITIES OF VENDOR.
4.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Vendor or under its supervision. Vendor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Vendor on an independent contractor basis and not as an employee. Vendor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Vendor shall also not be employees of City and shall at all times be under Vendor’s exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Vendor or any of Vendor’s officers, employees or agents, except as set forth in this Agreement. Vendor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of providing Goods and Services under this Agreement and as required by law. Vendor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
4.2 Schedule of Services.
4.2.1 Vendor shall perform the Services and provide Goods expeditiously, within the term of this Agreement, and in accordance with the Schedule of Goods and Services set forth in Exhibit “B” attached hereto and incorporated herein by reference (“Performance time”). Upon request of City, Vendor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Goods and Services. Vendor agrees that if the Goods are not provided and/or the Services are not completed within the Performance Time, it is understood, acknowledged and agreed that the City will suffer damage.
4.2.2 Neither City nor Vendor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non - performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and th e effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Vendor and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine rest rictions. For purposes of this S ection, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Agreement.
4.2.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Vendor to any additional compensation.
Notwithstanding the foregoing in this section, the City may still te rminate this Agreement in accordance with the termination provisions of this Agreement. 1137
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4.3 Conformance to Applicable Requirements. All work prepared by Vendor shall be subject to the approval of City.
4.4 Acceptance. The Goods shall be received subject to City’s inspection and right of rejection. The Goods shall not be considered accepted until inspection, testing and/or use of the Goods is found to be in accordance with the City’s specifications. Final inspection of the Goods shall be at the location specified herein, unless otherwise agreed in writing. If the Goods are found at any time to be defective in material or workmanship, or otherwise not in conformance with specifications, City shall have the right, in addition to any other rights which it may have under warranties or otherwise, to reject such Goods in whole or in part. Rejected Goods shall be held at Vendor’s risk for a reasonable time thereafter and shall be returned or disposed of at Vendor’s expense. No rejected Goods shall be replaced by Vendor without written instruction or authorization from City.
4.5 Coordination of Services . Vendor agrees to work closely with City staff in the performance of Services and shall be available to City ’s staff, consultants and other staff at all reasonable times.
4.6 Standard of Care; Performance of Employees. Vendor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Vendor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services as signed to them. Vendor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City business license, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Vendor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Vendor’s failure to comply with the standard of care provided for herein. Any employee of the Vendor or its sub-Vendors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed by the Vendor and shall not be r e-employed to perform any of the Services provided under this Agreement.
4.7 Warranty. In addition to all warranties which may be provided by law, Vendor warrants that the Goods delivered hereunder shall, (a) be free from defect of material or workmanship and conform strictly to the specifications, drawings, or sample specified or furnished; (b) conform to drawings, plans, specifications, samples or other descriptions furnished, specified, accepted or approved by City; and (c) be merchantable and fit for the purposes intended. The warranty shall be for a period of one (1) year, or such longer period as provided by a manufacturer’s warranty or as agreed to by Vendor and City, from the date of final written acceptance of the Goods by City. This warranty shall survive any inspection, delivery, acceptance, or payment by City of the Goods. Vendor, at its own expense, shall repair or replace, at the option of City, any defective Goods within two (2) business days after receipt of notice from City or within four (4) hours in case of emergency, as determined by City. Vendor also warrants that the Goods are free and clear of all liens and encumbrances whatsoever, that Vendor is conveying good and marketable title to same, and that Vendor owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Vendor 1138
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agrees to indemnify, defend and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.
4.8 Reserved.
4.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Vendor may be required to do, or respecting the size of any payment to Vendor during the performance of this Contract, Vendor shall continue to perform the Work while said dispute is decided by the City. If Vendor disputes the City’s decision, Vendor shall have such remedies as may be provided by law.
4.10 Laws and Regulations; Employee/Labor Certifications . Vendor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner a ffecting its performance under this Agreement , including all Cal/OSHA requirements, and shall give all notices required by law. Vendor shall be liable for all violations of such laws and regulations in connection with this Agreement. If the Vendor performs any work knowing it to be contrary to such laws, rules and re gulations and without giving written notice to the City, Vendor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Vendor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising ou t of any failure or alleged failure to comply with such laws, rules or regulations.
4.10.1 Employment Eligibility; Vendor. By executing this Agreement, Vendor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of th e Vendor. Vendor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Vendor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalen t federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Vendor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Vendor’s compliance with the requirements provided for in Section 4.10 or any of its sub-sections.
4.10.2 Employment Eligibility; Subcontractors, and Consultants . To the same extent and under the same conditions as Vendor, Vendor shall require all of its subcontractors, and consultants performing any work relating to this Agreement to make the same verifications and comply with all requirements and restrictions provided for herein. 1139
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4.10.3 Employment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Vendor verifies that they are a duly authorized officer of Vendor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Vendor or its subcontractors, or consultants to meet any of the requirements provided for in Sections 4.10.1 or 4.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Vendor under Section 4.10.2); or (3) failure to immediately remove from this contract any person found not to be in compliance with such requirements.
4.10.4 Labor Certification. By its signature hereunder, Vendor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
4.10.5 Equal Opportunity Employment . Vendor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Vendor shall also comply with all relevan t provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
4.10.6 Air Quality. Vendor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Vendor shall specifically be aware of the CARB limits and requirements ’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Vendor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Vendor, its subcontractors, or others for whom Vendor is responsible under its indemnity obligations provided for in this Agreement.
4.10.7 Water Quality.
4.10.7.1 Management and Compliance . To the extent applicable, Vendor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000 -14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Santa Ana Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.
4.10.7.2 Liability for Non -Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Vendor or City to penalties, fines, or additional regulatory requirements. Vendor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, 1140
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pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Vendor’s non - compliance with the laws, regulations and policies described in this Section, unless such non - compliance is the result of the sole negligence or willful misconduct of the City, its officials, officers, agents, employees or authorized volunteers.
4.10.7.3 Training. In addition to any other standard of care requirements set forth in this Agreement, Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Vendor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Vendor with a list of training programs that meet the requirements of this paragraph.
5. PROJECT MANAGEMENT
5.1 City’s Representative . The City hereby designates Manuel Rebolledo, Fleet Services Superintendent, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Vendor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
5.2 Vendor’s Representative. Vendor hereby designates Lon Samford, Director of Operations, or his or her designee, to act as its representative for the performance of this Agreement ( “Vendor’s Representative ”). Vendor’s Representative shall have full authority to represent and act on behalf of the Vendor for all purposes under this Agreement. The Vendor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all work required under this Agreement.
6. INSURANCE.
6.1 Time for Compliance . Vendor shall not commence w ork under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Vendor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.
6.2 Minimum Requirements. Vendor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Vendor, its agents, representatives, employees or subcontractors. Vendor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
6.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability : Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability : Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required 1141
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by the State of California and Employer ’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another.
6.2.2 Minimum Limits of Insurance. Vendor shall maintain limits no less than: (1) General Liability: $2,000,000 MINIMUM; per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 MINIMUM; per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 MINIMUM; per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
6.2.3 Manufacturer of Goods . If Vendor is also the manufacturer of any equipment included in the Goods, Vendor shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.
6.2.4 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Vendor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Vendor or the City may withhold amounts sufficient to pay premium from Vendor payments. In the alternative, the City may suspend or terminate this Agreement.
6.2.5 Additional Insured . The City of Ontario , its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Vendor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
6.3 Insurance Endorsements . The insurance policies shall contain the following provisions, or Vendor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
6.3.1 General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Vendor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on 1142
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a primary and noncontributory basis for the benefit of the City, before the City ’s own primary insurance, deductible, or self-insurance shall be called upon to protect it as a named insured. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 6.2.2, any availabl e insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 6.3.1.
6.3.2 Automobile Liability . The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any insurance , deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Policy shall contain or be endorsed to contain such provisions. Notwithstanding the minimum limits set forth in Section
6.2.2, any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional ins ureds pursuant to this Section 6.3.2.
6.3.3 Workers’ Compensation and Employer’s Liability Coverage . The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Vendor.
6.3.4 All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City , its directors, officials , officers, employees, agents, and volunteers. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.
6.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation . All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement , or a waiver of any coverage normally provided by any insurance. All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, its officials, officers, employees, agents , and volunteers, or any other 1143
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additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
6.5 Deductibles and Self -Insurance Retentions . Any deductibles or self -insured retentions must be declared to and approved by the City. Vendor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Vendor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
6.6 Subcontractor Insurance Requirements . Vendor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Vendor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Vendor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
6.7 Acceptability of Insurers . Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.
6.8 Verification of Coverage . Vendor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
6.9 Reporting of Claims. Vendor shall report to the City, in addition to Vendor’s insurer, any and all insurance claims submitted by Vendor in connection with the Services under this Agreement.
7. INDEMNIFICATION.
7.1 Scope of Indemnity. To the fullest extent permitted by law, Vendor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlemen ts, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Vendor, its officials, officers, employees, subcontractors, consultants or agents arising out of or in connecti on with the Services, the Goods or this Agreement, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Vendor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole negligence or willful misconduct of the City.
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7.2 Additional Indemnity Obligations . Vendor shall defend, with counsel of City’s choosing and at Vendor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers.
In addition, Vendor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Vendor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Vendor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Vendor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.
8. CALIFORNIA LABOR CODE
8.1 Prevailing Wages. Vendor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works ” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Vendor agrees to fully comply with such Prevailing Wage Laws. City shall provide Vendor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Vendor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Vendor’s principal place of business and at the project site. Vendor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 181 5 of the Labor Code within this Agreement, and Vendor shall therefore comply with such Labor Code sections to the fullest extent required by law.
8.2 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Vendor and all subcontractors must be registered with the Department of Industrial Relations.
Vendor shall maintain registration for the duration of this Agreement and require the same of any subcontractor. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
8.3 Compliance Monitoring . This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Vendor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor that affect Vendor’s performance of Services, including any delay, shall be Vendor’s sole responsibility. Any delay arising out of or resulting fr om such stop orders shall be considered Vendor caused delay and shall not be compensable by the City. Vendor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim 1145
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or liability arising out of stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor.
9. SAFETY.
Vendor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its s ervices, the Vendor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities fo r the proper inspection and maintenance of all safety measures.
10. ACCOUNTING RECORDS.
Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Vendor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) ye ars from the date of final payment under this Agreement.
11. TERMINATION OF AGREEMENT.
11.1 Grounds for Termination . City may, by written notice to Vendor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Vendor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Vendor shall be compensated only for those Services and Goods which have been adequately rendered to City, and Vendor shall be entitled to no further compensation. If terminated for cause because the Vendor refused or failed to deliver the Goods , the City may obtain Goods by whatever method it may deem expedient. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Goods, Vendor will be liable for and will pay the difference to City. Vendor may not terminate this Agreement except for cause.
The rights and remedie s of the City provided in this S ection shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
11.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Vendor to provide all finished or unfinished documents and data and other information of any kind prepared by Vendor in connection with the performance of the Services under this Agreement. Vendor shall be required to provide such document and other information within fifteen (15) days of the request.
11.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, goods and services similar to those terminated. 1146
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12. GENERAL PROVISIONS.
12.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Vendor:
SVT Fleet, LLC
509 Bateman Circle.
Corona, CA 92878
Attn: Lon Samford, Director of Operations
City:
City of Ontario
303 East “B” Street
Ontario, CA 91764-4196
Attn: Manuel Rebolledo, Fleet Services Superintendent
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
12.2 Subcontracting. Vendor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
12.3 Governing Law; Government Code Claim Compliance . This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disput ed work, claims and/or changed conditions, Vendor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the G overnment Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Vendor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Vendor shall be barred from bringing and maintaining a valid lawsuit against the City.
12.4 Time of Essence . Time is of the essence for each and every provision of this Agreement.
12.5 City’s Right to Employ Other Vendors. City reserves right to employ other Vendors in connection with the Goods and Services provided under this Agreement. 1147
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12.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
12.7 Assignment or Transfer. Vendor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transf erees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
12.8 Construction; References; Captions . Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Vendor include all personnel, employees, agents, and subcontractors of Vendor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
12.9 Amendment; Modification . No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
12.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
12.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section
12.7, there ar e no intended third party beneficiaries of any right or obligation assumed by the Parties.
12.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
12.13 Prohibited Interests. Vendor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Vendor, to solicit or secure this Agreement. Further, Vendor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Vendor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Vendor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City ’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
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12.14 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
12.15 Authority to Enter Agreement . Vendor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
12.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
12.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
SIGNATURES ON NEXT PAGE
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SIGNATURE PAGE FOR GOODS & SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND SVT FLEET, LLC.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the day and year first above written.
CITY OF ONTARIO SVT FLEET, LLC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
Assistant City Clerk
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(BB&K 2024) Exhibit A-1 Goods and Services Agreement
EXHIBIT “A”
SCOPE OF SERVICES
MEDIUM & HEAVY-DUTY TRUCK PARTS & REPAIRS
City of Ontario Fleet Services Department
Location: 1425 S. Bon View Ave, Ontario, CA 91761
1. Introduction
The City of Ontario Public Works Department is seeking proposals from authorized service centers and dealerships to provide parts and repair services for medium-duty and heavy-duty trucks. The service provider’s location must be within a 20-mile radius of the City of Ontario Public Works Yard, located at 1425 S. Bon View, Ontario, CA 91761.
2. Scope of Work
The selected service provider will be responsible for performing the following tasks:
A. Repair and Maintenance Services
• Routine maintenance, including oil changes, brake inspections, fluid replacements, and tune-ups.
• Engine diagnostics and repairs.
• Transmission and drivetrain servicing.
• Electrical system diagnostics and repairs.
• Suspension, steering, and alignment services.
• HVAC system repairs.
• Exhaust system repairs.
• DOT inspections and certifications.
• Any additional services required to maintain operational efficiency.
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(BB&K 2024) Exhibit B-1 Goods and Services Agreement
EXHIBIT “B”
SCHEDULE OF SERVICES
REPAIR SERVICES
Requests for repairs shall only be requested by the following Fleet Services staff. ► Fleet Services Manager
► Fleet Services Supervisor
► Fleet Services Coordinator
Arrangements will be made for the delivery and/or pickup of the vehicle to and from Vendor’s site at time of request for repairs and when work is completed. The invoice emailed to [email protected] within 24 business hours of delivery.
PARTS 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 to [email protected] within 24 business hours of delivery.
As determined by the City, the delivery time frames are M-F 7:00 a.m. and 5:30 p.m., provided that special-order items may be exempt from such a time frame.
DELIVERY LOCATION:
Site Address
Fleet Services 1425 South Bon View Avenue., CA 91761
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(BB&K 2024) Exhibit C-1 Goods and Services Agreement
EXHIBIT “C”
COMPENSATION
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(BB&K 2024) - 1 - Goods and Services Agreement
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
CITY OF ONTARIO
GOODS & SERVICES AGREEMENT
This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California (“City”) and Transwest Truck Center, LLC a C-Corporation with its principal place of business at 10150 Cherry Ave., Fontana, CA 92335. (“Vendor”). City and Vendor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. Vendor desires to perform and assume responsibility for the provision of certain services and goods required by the City on the terms and conditions set forth in this Agreement.
Vendor represents that it is experienced in providing similar services and goods to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California and that is familiar with and understands the needs of City.
B. City desires to engage Vendor to sell to City the materials and/or equipment and/or render such services as more particularly described in this Agreement.
TERMS
1. SCOPE OF SERVICES.
1.1 General Scope of Services. Vendor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the Medium & Heavy-Duty Truck Parts & Repairs Services (“Services”) which are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
1.2 Goods. Vendor agrees to sell to City and City agrees to purchase the materials and/or equipment (“Goods”) as specified and per the specifications attached hereto and incorporated herein as Exhibit “A.” Unless specifically stated otherwise, the Goods shall be new and unused and of the current production year.
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2. TERM.
2.1 The term of this Agreement shall be from July 1, 2025, to June 30, 2028, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms.
Vendor shall provide all Goods and complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the work.
3. FEES AND PAYMENTS.
3.1 Compensation. Vendor shall receive compensation, including authorized reimbursements, for all Goods provided and Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Four Hundred Fifty Thousand Dollars and Zero Cents ($450,000) without written approval of City’s Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2 Payment of Compensation . Vendor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Vendor and Goods provided. The statement shall describe the amount of Services and Goods provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all non-disputed and approved charges thereon.
3.3 Reimbursement for Expenses. Vendor shall not be reimbursed for any expenses unless authorized in writing by City.
3.4 Extra Work. At any time during the term of this Agreement, City may request that Vendor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Goods and Services, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Vendor shall not perform, nor be compensated for, Extra Work without written authorization from City ’s Representative.
3.5 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. Vendor shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Vendor 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 Vendor is not entitled: (1) Vendor shall immediately notify the City and the financial institution; (2) Vendor shall not withdraw any of the funds which were erroneously deposited or to which Vendor is not entitled; an d (3) Vendor 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 Vendor is not entitled.
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4. RESPONSIBILITIES OF VENDOR.
4.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Vendor or under its supervision. Vendor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Vendor on an independent contractor basis and not as an employee. Vendor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Vendor shall also not be employees of City and shall at all times be under Vendor’s exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Vendor or any of Vendor’s officers, employees or agents, except as set forth in this Agreement. Vendor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of providing Goods and Services under this Agreement and as required by law. Vendor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
4.2 Schedule of Services.
4.2.1 Vendor shall perform the Services and provide Goods expeditiously, within the term of this Agreement, and in accordance with the Schedule of Goods and Services set forth in Exhibit “B” attached hereto and incorporated herein by reference (“Performance time”). Upon request of City, Vendor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Goods and Services. Vendor agrees that if the Goods are not provided and/or the Services are not completed within the Performance Time, it is understood, acknowledged and agreed that the City will suffer damage.
4.2.2 Neither City nor Vendor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non - performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on th e services, only to the extent such strikes and other organized labor action are beyond the control of Vendor and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or qua rantine rest rictions. For purposes of this S ection, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Agreement.
4.2.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Vendor to any additional compensation.
Notwithstanding the foregoing in this section, the City may still te rminate this Agreement in accordance with the termination provisions of this Agreement. 1156
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4.3 Conformance to Applicable Requirements. All work prepared by Vendor shall be subject to the approval of City.
4.4 Acceptance. The Goods shall be received subject to City’s inspection and right of rejection. The Goods shall not be considered accepted until inspection, testing and/or use of the Goods is found to be in accordance with the City’s specifications. Final inspection of the Goods shall be at the location specified herein, unless otherwise agreed in writing. If the Goods are found at any time to be defective in material or workmanship, or otherwise not in conformance with specifications, City shall have the right, in addition to any other rights which it may have under warranties or otherwise, to reject such Goods in whole or in part. Rejected Goods shall be held at Vendor’s risk for a reasonable time thereafter and shall be returned or disposed of at Vendor’s expense. No rejected Goods shall be replaced by Vendor without written instruction or authorization from City.
4.5 Coordination of Services . Vendor agrees to work closely with City staff in the performance of Services and shall be available to City ’s staff, consultants and other staff at all reasonable times.
4.6 Standard of Care; Performance of Employees. Vendor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Vendor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services as signed to them. Vendor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City business license, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Vendor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Vendor’s failure to comply with the standard of care provided for herein. Any employee of the Vendor or its sub-Vendors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed by the Vendor and shall not be r e-employed to perform any of the Services provided under this Agreement.
4.7 Warranty. In addition to all warranties which may be provided by law, Vendor warrants that the Goods delivered hereunder shall, (a) be free from defect of material or workmanship and conform strictly to the specifications, drawings, or sample specified or furnished; (b) conform to drawings, plans, specifications, samples or other descriptions furnished, specified, accepted or approved by City; and (c) be merchantable and fit for the purposes intended. The warranty shall be for a period of one (1) year, or such longer period as provided by a manufacturer’s warranty or as agreed to by Vendor and City, from the date of final written acceptance of the Goods by City. This warranty shall survive any inspection, delivery, acceptance, or payment by City of the Goods. Vendor, at its own expense, shall repair or replace, at the option of City, any defective Goods within two (2) business days after receipt of notice from City or within four (4) hours in case of emergency, as determined by City. Vendor also warrants that the Goods are free and clear of all liens and encumbrances whatsoever, that Vendor is conveying good and marketable title to same, and that Vendor owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Vendor 1157
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agrees to indemnify, defend and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.
4.8 Reserved.
4.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Vendor may be required to do, or respecting the size of any payment to Vendor during the performance of this Contract, Vendor shall continue to perform the Work while said dispute is decided by the City. If Vendor disputes the City’s decision, Vendor shall have such remedies as may be provided by law.
4.10 Laws and Regulations; Employee/Labor Certifications . Vendor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner a ffecting its performance under this Agreement , including all Cal/OSHA requirements, and shall give all notices required by law. Vendor shall be liable for all violations of such laws and regulations in connection with this Agreement. If the Vendor performs any work knowing it to be contrary to such laws, rules and re gulations and without giving written notice to the City, Vendor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Vendor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising ou t of any failure or alleged failure to comply with such laws, rules or regulations.
4.10.1 Employment Eligibility; Vendor. By executing this Agreement, Vendor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Vendor. Vendor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Vendor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent feder al work authorization program operated by the United States D epartment of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Vendor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Vendor’s compliance with the requirements provided for in Section 4.10 or any of its sub-sections.
4.10.2 Employment Eligibility; Subcontractors, and Consultants . To the same extent and under the same conditions as Vendor, Vendor shall require all of its subcontractors, and consultants performing any work relating to this Agreement to make the same verifications and comply with all requirements and restrictions provided for herein. 1158
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4.10.3 Employment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Vendor verifies that they are a duly authorized officer of Vendor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Vendor or its subcontractors, or consultants to meet any of the requirements provided for in Sections 4.10.1 or 4.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Vendor under Section 4.10.2); or (3) failure to immediately remove from this contract any person found not to be in compliance with such requirements.
4.10.4 Labor Certification. By its signature hereunder, Vendor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
4.10.5 Equal Opportunity Employment . Vendor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Vendor shall also comply with all relevan t provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
4.10.6 Air Quality. Vendor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Vendor shall specifically be aware of the CARB limits and requirements ’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Vendor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Vendor, its subcontractors, or others for whom Vendor is responsible under its indemnity obligations provided for in this Agreement.
4.10.7 Water Quality.
4.10.7.1 Management and Compliance . To the extent applicable, Vendor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000 -14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Santa Ana Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of polluta nts, as that term is used in the Porter -Cologne Water Quality Control Act, to any ground or surface water in the State.
4.10.7.2 Liability for Non -Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Vendor or City to penalties, fines, or additional regulatory requirements. Vendor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, 1159
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pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Vendor’s non - compliance with the laws, regulations and policies described in this Section, unless such non - compliance is the result of the sole negligence or willful misconduct of the City, its officials, officers, agents, employees or authorized volunteers.
4.10.7.3 Training. In addition to any other standard of care requirements set forth in this Agreement, Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Vendor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Vendor with a list of training programs that meet the requirements of this paragraph.
5. PROJECT MANAGEMENT
5.1 City’s Representative . The City hereby designates Manuel Rebolledo, Fleet Services Superintendent, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Vendor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
5.2 Vendor’s Representative . Vendor hereby designates Louie Garcia, Regional Municipal Manager, or his or her designee, to act as its representative for the performance of this Agreement (“Vendor’s Representative”). Vendor’s Representative shall have full authority to represent and act on behalf of the Vendor for all purposes under this Agreement. The Vendor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all work required under this Agreement.
6. INSURANCE.
6.1 Time for Compliance . Vendor shall not commence w ork under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Vendor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.
6.2 Minimum Requirements. Vendor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Vendor, its agents, representatives, employees or subcontractors. Vendor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
6.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability : Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability : Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required 1160
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by the State of California and Employer ’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another.
6.2.2 Minimum Limits of Insurance. Vendor shall maintain limits no less than: (1) General Liability: $2,000,000 MINIMUM; per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 MINIMUM; per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 MINIMUM; per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
6.2.3 Manufacturer of Goods . If Vendor is also the manufacturer of any equipment included in the Goods, Vendor shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.
6.2.4 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Vendor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Vendor or the City may withhold amounts sufficient to pay premium from Vendor payments. In the alternative, the City may suspend or terminate this Agreement.
6.2.5 Additional Insured . The City of Ontario , its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Vendor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
6.3 Insurance Endorsements . The insurance policies shall contain the following provisions, or Vendor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
6.3.1 General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Vendor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on 1161
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a primary and noncontributory basis for the benefit of the City, before the City ’s own primary insurance, deductible, or self-insurance shall be called upon to protect it as a named insured. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 6.2.2, any availabl e insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 6.3.1.
6.3.2 Automobile Liability . The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any insurance , deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Policy shall contain or be endorsed to contain such provisions. Notwithstanding the minimum limits set forth in Section
6.2.2, any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional ins ureds pursuant to this Section 6.3.2.
6.3.3 Workers’ Compensation and Employer’s Liability Coverage . The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Vendor.
6.3.4 All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City , its directors, officials , officers, employees, agents, and volunteers. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.
6.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation . All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement , or a waiver of any coverage normally provided by any insurance. All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, its officials, officers, employees, agents , and volunteers, or any other 1162
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additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
6.5 Deductibles and Self -Insurance Retentions . Any deductibles or self -insured retentions must be declared to and approved by the City. Vendor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Vendor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
6.6 Subcontractor Insurance Requirements . Vendor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Vendor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Vendor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
6.7 Acceptability of Insurers . Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.
6.8 Verification of Coverage . Vendor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
6.9 Reporting of Claims. Vendor shall report to the City, in addition to Vendor’s insurer, any and all insurance claims submitted by Vendor in connection with the Services under this Agreement.
7. INDEMNIFICATION.
7.1 Scope of Indemnity. To the fullest extent permitted by law, Vendor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlemen ts, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Vendor, its officials, officers, employees, subcontractors, consultants or agents arising out of or in connecti on with the Services, the Goods or this Agreement, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Vendor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole negligence or willful misconduct of the City.
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7.2 Additional Indemnity Obligations . Vendor shall defend, with counsel of City’s choosing and at Vendor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers.
In addition, Vendor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Vendor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Vendor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Vendor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.
8. CALIFORNIA LABOR CODE
8.1 Prevailing Wages. Vendor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works ” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Vendor agrees to fully comply with such Prevailing Wage Laws. City shall provide Vendor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Vendor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Vendor’s principal place of business and at the project site. Vendor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Vendor shall therefore comply with such Labor Code sections to the fullest extent required by law.
8.2 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Vendor and all subcontractors must be registered with the Department of Industrial Relations.
Vendor shall maintain registration for the duration of this Agreement and require the same of any subcontractor. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
8.3 Compliance Monitoring . This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Vendor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor that affect Vendor’s performance of Services, including any delay, shall be Vendor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considere d Vendor caused delay and shall not be compensable by the City. Vendor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim 1164
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or liability arising out of stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor.
9. SAFETY.
Vendor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its s ervices, the Vendor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
10. ACCOUNTING RECORDS.
Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Vendor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) ye ars from the date of final payment under this Agreement.
11. TERMINATION OF AGREEMENT.
11.1 Grounds for Termination . City may, by written notice to Vendor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Vendor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Vendor shall be compensated only for those Services and Goods which have been adequately rendered to City, and Vendor shall be entitled to no further compensation. If terminated for cause because the Vendor refused or failed to deliver the Goods , the City may obtain Goods by whatever method it may deem expedient. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Goods, Vendor will be liable for and will pay the difference to City. Vendor may not terminate this Agreement except for cause.
The rights and remedie s of the City provided in this S ection shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
11.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Vendor to provide all finished or unfinished documents and data and other information of any kind prepared by Vendor in connection with the performance of the Services under this Agreement. Vendor shall be required to provide such document and other information within fifteen (15) days of the request.
11.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, goods and services similar to those terminated. 1165
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12. GENERAL PROVISIONS.
12.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Vendor:
Transwest Truck Center, LLC
10150 Cherry Ave.
Fontana, CA 92335
Attn: Louie Garcia, Regional Municipal Manager
City:
City of Ontario
303 East “B” Street
Ontario, CA 91764-4196
Attn: Manuel Rebolledo, Fleet Services Superintendent
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate not ice on the date actual notice occurred, regardless of the method of service.
12.2 Subcontracting. Vendor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
12.3 Governing Law; Government Code Claim Compliance . This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disput ed work, claims and/or changed conditions, Vendor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code cla ims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Vendor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Vendor shall be barred from bringing and maintaining a valid lawsuit against the City.
12.4 Time of Essence . Time is of the essence for each and every provision of this Agreement.
12.5 City’s Right to Employ Other Vendors. City reserves right to employ other Vendors in connection with the Goods and Services provided under this Agreement. 1166
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12.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
12.7 Assignment or Transfer. Vendor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transf erees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
12.8 Construction; References; Captions . Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Vendor include all personnel, employees, agents, and subcontractors of Vendor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
12.9 Amendment; Modification . No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
12.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
12.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section
12.7, there ar e no intended third party beneficiaries of any right or obligation assumed by the Parties.
12.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
12.13 Prohibited Interests. Vendor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Vendor, to solicit or secure this Agreement. Further, Vendor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Vendor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Vendor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City ’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
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12.14 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
12.15 Authority to Enter Agreement . Vendor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
12.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
12.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
SIGNATURES ON NEXT PAGE
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SIGNATURE PAGE FOR GOODS & SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND TRANSWEST TRUCK CENTER, LLC
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the day and year first above written.
CITY OF ONTARIO TRANSWEST TRUCK CENTER, LLC
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
Assistant City Clerk
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(BB&K 2024) Exhibit A-1 Goods and Services Agreement
EXHIBIT “A”
SCOPE OF SERVICES
MEDIUM & HEAVY-DUTY TRUCK PARTS & REPAIRS
City of Ontario Fleet Services Department
Location: 1425 S. Bon View Ave, Ontario, CA 91761
1. Introduction
The City of Ontario Public Works Department is seeking proposals from authorized service centers and dealerships to provide parts and repair services for medium-duty and heavy-duty trucks. The service provider’s location must be within a 20-mile radius of the City of Ontario Public Works Yard, located at 1425 S. Bon View, Ontario, CA 91761.
2. Scope of Work
The selected service provider will be responsible for performing the following tasks:
A. Repair and Maintenance Services
• Routine maintenance, including oil changes, brake inspections, fluid replacements, and tune-ups.
• Engine diagnostics and repairs.
• Transmission and drivetrain servicing.
• Electrical system diagnostics and repairs.
• Suspension, steering, and alignment services.
• HVAC system repairs.
• Exhaust system repairs.
• DOT inspections and certifications.
• Any additional services required to maintain operational efficiency.
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(BB&K 2024) Exhibit B-1 Goods and Services Agreement
EXHIBIT “B”
SCHEDULE OF SERVICES
REPAIR SERVICES
Requests for repairs shall only be requested by the following Fleet Services staff. ► Fleet Services Manager
► Fleet Services Supervisor
► Fleet Services Coordinator
Arrangements will be made for the delivery and/or pickup of the vehicle to and from Vendor’s site at time of request for repairs and when work is completed. The invoice emailed to [email protected] within 24 business hours of delivery.
PARTS 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 to [email protected] within 24 business hours of delivery.
As determined by the City, the delivery time frames are M-F 7:00 a.m. and 5:30 p.m., provided that special-order items may be exempt from such a time frame.
DELIVERY LOCATION:
Site Address
Fleet Services 1425 South Bon View Avenue., CA 91761
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(BB&K 2024) Exhibit C-1 Goods and Services Agreement
EXHIBIT “C”
COMPENSATION
1172
Department: Public Works
Prepared By: Manuel Rebolledo
Department:
Prepared By: Manuel Rebolledo
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Bonnie Tam, Jacqueline Leon
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 7
SUBJECT:
A GOODS AND SERVICES AGREEMENT WITH LONG BEACH BMW MOTORCYCLES
AS AN AUTHORIZED SUPPLIER FOR POLICE MOTORCYCLE PARTS AND REPAIR
SERVICES
CITY OF ONTARIO
Agenda Report
July 15, 2025
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council take the following actions:
A
.
Authorize Long Beach BMW Motorcycles, of Long Beach, California, as an authorized supplier for current and future purchases of parts and repair services for the Ontario Police Department’s BMW Motorcycles, and
B
.
Authorize the City Manager, or his designee, to execute a Goods and Services Agreement with Long Beach BMW Motorcycles, of Long Beach, California, for a total not-to-exceed contract amount of $225,000 over a three-year term and authorize the option to extend the Agreement for two additional one-year terms for a total not-to-exceed amount of $375,000.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
FISCAL IMPACT:
The recommended contract award to Long Beach BMW Motorcycles is for a total not-to-exceed contract amount of $225,000 over a three-year term. Two one-year extensions may be exercised at the City’s sole discretion for an additional contract amount of $75,000 per year for a total not-to-exceed contract amount of $375,000 over the five-year term. The Fiscal Year 2025-26 Adopted Budget includes appropriations in the Equipment Services Fund for Police BMW Motorcycle parts and repair services.
BACKGROUND & ANALYSIS:
The Municipal Services Department maintains the vehicles and equipment used by various City Agencies, including the Police Department. To ensure that the vehicles and equipment are safe to operate, maintenance and repairs are necessary on a regular basis, and undue time delays affect the City’s ability to provide services to the community. Due to the specialized parts on the Police fleet and equipment, there is a limited number of authorized 1173
vendors that can provide them. For these reasons, it is not cost-effective for the City to follow standard purchasing procedures to solicit bids or requests for proposals.
On July 2, 2019, City Council approved Long Beach BMW Motorcycles as a pre-authorized vendor for the supply of parts and services for Police BMW motorcycles and approved a five-year Goods and Services Agreement. On July 2, 2024, City Council approved Amendment No. 5, extending the Agreement one more year based on excellent performance supporting the Municipal Services Department in maintaining the Police BMW motorcycles.
This procurement was conducted without a competitive solicitation process because Long Beach BMW Motorcycles is the sole supplier of the required services and equipment within a reasonable geographic vicinity of the City. Long Beach BMW offers free pickup and drop-off services for the City’s motorcycles, eliminating staff travel time and reducing operational disruptions. In addition, they are the largest Police BMW motorcycle dealer in the region and maintain a robust inventory of original equipment manufactured parts, which significantly minimizes downtime for both routine maintenance and larger repairs.
While the City does have agreements in place with two other local vendors for smaller repairs, these are used as backups. When the City attempted to use these vendors for larger repairs, the services have experienced delays due to parts needing to be ordered, which increased motorcycle downtime and impacted fleet availability.
Staff recommends awarding a Goods and Services Agreement to Long Beach BMW Motorcycles to ensure the continued safe and efficient maintenance of the Police Department’s motorcycle fleet, consistent with the City Council’s prior actions.
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(BB&K 2024) - 1 - Goods and Services Agreement
CITY OF ONTARIO
GOODS & SERVICES AGREEMENT
This Agreement is made and entered into as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764-4196, County of San Bernardino, State of California (“City”) and Long Beach BMW Motorcycles, a S-Corporation with its principal place of business at 2125 E. Spring St., Long Beach CA 90806 (“Vendor”).
City and Vendor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. Vendor desires to perform and assume responsibility for the provision of certain services and goods required by the City on the terms and conditions set forth in this Agreement.
Vendor represents that it is experienced in providing similar services and goods to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California and that is familiar with and understands the needs of City.
B. City desires to engage Vendor to sell to City the materials and/or equipment and/or render such services as more particularly described in this Agreement.
TERMS
1. SCOPE OF SERVICES.
1.1 General Scope of Services. Vendor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the Police BMW Motorcycle Parts & Repair Maintenance Services (“Services”) which are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
1.2 Goods. Vendor agrees to sell to City and City agrees to purchase the materials and/or equipment (“Goods”) as specified and per the specifications attached hereto and incorporated herein as Exhibit “A.” Unless specifically stated otherwise, the Goods shall be new and unused and of the current production year.
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
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(BB&K 2024) - 2 - Goods and Services Agreement
2. TERM.
2.1 The term of this Agreement shall be from July 1, 2025, to June 30,2028, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms.
Vendor shall provide all Goods and complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the work.
3. FEES AND PAYMENTS.
3.1 Compensation. Vendor shall receive compensation, including authorized reimbursements, for all Goods provided and Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed Two Hundred Twenty-Five Thousand Dollars and Zero Cents ($225,000) without written approval of City’s Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2 Payment of Compensation. Vendor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Vendor and Goods provided. The statement shall describe the amount of Services and Goods provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all non-disputed and approved charges thereon.
3.3 Reimbursement for Expenses. Vendor shall not be reimbursed for any expenses unless authorized in writing by City.
3.4 Extra Work. At any time during the term of this Agreement, City may request that Vendor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Goods and Services, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Vendor shall not perform, nor be compensated for, Extra Work without written authorization from City ’s Representative.
3.5 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. Vendor shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Vendor 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 Vendor is not entitled: (1) Vendor shall immediately notify the City and the financial institution; (2) Vendor shall not withdraw any of the funds which were erroneously deposited or to which Vendor is not entitled; and (3) Vendor 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 Vendor is not entitled.
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4. RESPONSIBILITIES OF VENDOR.
4.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Vendor or under its supervision. Vendor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Vendor on an independent contractor basis and not as an employee. Vendor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Vendor shall also not be employees of City and shall at all times be under Vendor’s exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Vendor or any of Vendor’s officers, employees or agents, except as set forth in this Agreement. Vendor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of providing Goods and Services under this Agreement and as required by law. Vendor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
4.2 Schedule of Services.
4.2.1 Vendor shall perform the Services and provide Goods expeditiously, within the term of this Agreement, and in accordance with the Schedule of Goods and Services set forth in Exhibit “B” attached hereto and incorporated herein by reference (“Performance time”). Upon request of City, Vendor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Goods and Services. Vendor agrees that if the Goods are not provided and/or the Services are not completed within the Performance Time, it is understood, acknowledged and agreed that the City will suffer damage.
4.2.2 Neither City nor Vendor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non - performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and th e effects thereof on the services, only to the extent such strikes and other organized labor action are beyond the control of Vendor and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine rest rictions. For purposes of this S ection, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Agreement.
4.2.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party responsible for the delay, shall not entitle Vendor to any additional compensation.
Notwithstanding the foregoing in this section, the City may still te rminate this Agreement in accordance with the termination provisions of this Agreement. 1177
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4.3 Conformance to Applicable Requirements. All work prepared by Vendor shall be subject to the approval of City.
4.4 Acceptance. The Goods shall be received subject to City’s inspection and right of rejection. The Goods shall not be considered accepted until inspection, testing and/or use of the Goods is found to be in accordance with the City’s specifications. Final inspection of the Goods shall be at the location specified herein, unless otherwise agreed in writing. If the Goods are found at any time to be defective in material or workmanship, or otherwise not in conformance with specifications, City shall have the right, in addition to any other rights which it may have under warranties or otherwise, to reject such Goods in whole or in part. Rejected Goods shall be held at Vendor’s risk for a reasonable time thereafter and shall be returned or disposed of at Vendor’s expense. No rejected Goods shall be replaced by Vendor without written instruction or authorization from City.
4.5 Coordination of Services . Vendor agrees to work closely with City staff in the performance of Services and shall be available to City ’s staff, consultants and other staff at all reasonable times.
4.6 Standard of Care; Performance of Employees. Vendor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Vendor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services as signed to them. Vendor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City business license, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Vendor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Vendor’s failure to comply with the standard of care provided for herein. Any employee of the Vendor or its sub-Vendors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed by the Vendor and shall not be r e-employed to perform any of the Services provided under this Agreement.
4.7 Warranty. In addition to all warranties which may be provided by law, Vendor warrants that the Goods delivered hereunder shall, (a) be free from defect of material or workmanship and conform strictly to the specifications, drawings, or sample specified or furnished; (b) conform to drawings, plans, specifications, samples or other descriptions furnished, specified, accepted or approved by City; and (c) be merchantable and fit for the purposes intended. The warranty shall be for a period of one (1) year, or such longer period as provided by a manufacturer’s warranty or as agreed to by Vendor and City, from the date of final written acceptance of the Goods by City. This warranty shall survive any inspection, delivery, acceptance, or payment by City of the Goods. Vendor, at its own expense, shall repair or replace, at the option of City, any defective Goods within two (2) business days after receipt of notice from City or within four (4) hours in case of emergency, as determined by City. Vendor also warrants that the Goods are free and clear of all liens and encumbrances whatsoever, that Vendor is conveying good and marketable title to same, and that Vendor owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Vendor 1178
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agrees to indemnify, defend and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.
4.8 Reserved.
4.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Vendor may be required to do, or respecting the size of any payment to Vendor during the performance of this Contract, Vendor shall continue to perform the Work while said dispute is decided by the City. If Vendor disputes the City’s decision, Vendor shall have such remedies as may be provided by law.
4.10 Laws and Regulations; Employee/Labor Certifications . Vendor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner a ffecting its performance under this Agreement , including all Cal/OSHA requirements, and shall give all notices required by law. Vendor shall be liable for all violations of such laws and regulations in connection with this Agreement. If the Vendor performs any work knowing it to be contrary to such laws, rules and re gulations and without giving written notice to the City, Vendor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours during any one calendar day except as permitted by law. Vendor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising ou t of any failure or alleged failure to comply with such laws, rules or regulations.
4.10.1 Employment Eligibility; Vendor. By executing this Agreement, Vendor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of th e Vendor. Vendor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Vendor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalen t federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Vendor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Vendor’s compliance with the requirements provided for in Section 4.10 or any of its sub-sections.
4.10.2 Employment Eligibility; Subcontractors, and Consultants . To the same extent and under the same conditions as Vendor, Vendor shall require all of its subcontractors, and consultants performing any work relating to this Agreement to make the same verifications and comply with all requirements and restrictions provided for herein. 1179
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4.10.3 Employment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Vendor verifies that they are a duly authorized officer of Vendor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Vendor or its subcontractors, or consultants to meet any of the requirements provided for in Sections 4.10.1 or 4.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Vendor under Section 4.10.2); or (3) failure to immediately remove from this contract any person found not to be in compliance with such requirements.
4.10.4 Labor Certification. By its signature hereunder, Vendor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
4.10.5 Equal Opportunity Employment . Vendor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Vendor shall also comply with all relevan t provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
4.10.6 Air Quality. Vendor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Vendor shall specifically be aware of the CARB limits and requirements ’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Vendor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Vendor, its subcontractors, or others for whom Vendor is responsible under its indemnity obligations provided for in this Agreement.
4.10.7 Water Quality.
4.10.7.1 Management and Compliance . To the extent applicable, Vendor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000 -14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Santa Ana Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of polluta nts, as that term is used in the Porter -Cologne Water Quality Control Act, to any ground or surface water in the State.
4.10.7.2 Liability for Non -Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Vendor or City to penalties, fines, or additional regulatory requirements. Vendor shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, 1180
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pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Vendor ’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole negligence or willful misconduct of the City, its officials, officers, agents, employees or authorized volunteers.
4.10.7.3 Training. In addition to any other standard of care requirements set forth in this Agreement, Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Vendor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Vendor with a list of training programs that meet the requirements of this paragraph.
5. PROJECT MANAGEMENT
5.1 City’s Representative . The City hereby designates Manuel Rebolledo, Fleet Services Superintendent, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative ”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Vendor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
5.2 Vendor’s Representative. Vendor hereby designates Charles Berthon, General Manager, or his or her designee, to act as its representative for the performance of this Agreement (“Vendor’ s Representative ”). Vendor’s Representative shall have full authority to represent and act on behalf of the Vendor for all purposes under this Agreement.
The Vendor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all work required under this Agreement.
6. INSURANCE.
6.1 Time for Compliance. Vendor shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Vendor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.
6.2 Minimum Requirements. Vendor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Vendor, its agents, representatives, employees or subcontractors. Vendor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
6.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability : Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer ’s Liability: Workers’ Compensation insurance as required
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by the State of California and Employer ’s Liability Insurance. The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another.
6.2.2 Minimum Limits of Insurance. Vendor shall maintain limits no less than: (1) General Liability : $2,000,000 MINIMUM; per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $2,000,000 MINIMUM; per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 MINIMUM; per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
6.2.3 Manufacturer of Goods . If Vendor is also the manufacturer of any equipment included in the Goods, Vendor shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.
6.2.4 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Vendor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Vendor or the City may withhold amounts sufficient to pay premium from Vendor payments. In the alternative, the City may suspend or terminate this Agreement.
6.2.5 Additional Insured . The City of Ontario , its directors, officials, officers, employees, agents, and volunteers shall be named as additional insureds on Vendor’s and its subcontractors’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
6.3 Insurance Endorsements . The insurance policies shall contain the following provisions, or Vendor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
6.3.1 General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Ontario, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Vendor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on 1182
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a primary and noncontributory basis for the benefit of the City, before the City ’s own primary insurance, deductible, or self-insurance shall be called upon to protect it as a named insured. Any insurance, deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section 6.2.2, any availabl e insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 6.3.1.
6.3.2 Automobile Liability . The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Vendor or for which the Vendor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Any insurance , deductible, or self-insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way. Policy shall contain or be endorsed to contain such provisions. Notwithstanding the minimum limits set forth in Section
6.2.2, any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional ins ureds pursuant to this Section 6.3.2.
6.3.3 Workers’ Compensation and Employer’s Liability Coverage . The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Vendor.
6.3.4 All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City , its directors, officials, of ficers, employees, agents, and volunteers. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.
6.4 Separation of Insureds; No Special Limitations; Waiver of Subrogation . All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement , or a waiver of any coverage normally provided by any insurance. All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, its officials, officers, employees, agents , and volunteers, or any other 1183
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additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
6.5 Deductibles and Self -Insurance Retentions . Any deductibles or self -insured retentions must be declared to and approved by the City. Vendor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Vendor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
6.6 Subcontractor Insurance Requirements . Vendor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Vendor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Vendor and the City shall be named as additional insureds on all subcontractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
6.7 Acceptability of Insurers . Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.
6.8 Verification of Coverage . Vendor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
6.9 Reporting of Claims. Vendor shall report to the City, in addition to Vendor’s insurer, any and all insurance claims submitted by Vendor in connection with the Services under this Agreement.
7. INDEMNIFICATION.
7.1 Scope of Indemnity. To the fullest extent permitted by law, Vendor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlemen ts, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Vendor, its officials, officers, employees, subcontractors, consultants or agents arising out of or in connecti on with the Services, the Goods or this Agreement, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Vendor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole negligence or willful misconduct of the City.
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7.2 Additional Indemnity Obligations . Vendor shall defend, with counsel of City’s choosing and at Vendor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and volunteers.
In addition, Vendor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Vendor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Vendor shall reimburse City and its officials, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Vendor’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and volunteers.
8. CALIFORNIA LABOR CODE
8.1 Prevailing Wages. Vendor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works ” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Vendor agrees to fully comply with such Prevailing Wage Laws. City shall provide Vendor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Vendor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Vendor’s principal place of business and at the projec t site. Vendor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Vendor shall therefore comply with such Labor Code sections to the fullest extent required by law.
8.2 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Vendor and all subcontractors must be registered with the Department of Industrial Relations.
Vendor shall maintain registration for the duration of this Agreement and require the same of any subcontractor. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
8.3 Compliance Monitoring . This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Vendor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor that affect Vendor’s performance of Services, including any delay, shall be Vendor’s sole responsibility. Any delay arising out of or resulting fr om such stop orders shall be considered Vendor caused delay and shall not be compensable by the City. Vendor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim 1185
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or liability arising out of stop orders issued by the Department of Industrial Relations against Vendor or any subcontractor.
9. SAFETY.
Vendor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its s ervices, the Vendor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adeq uate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
10. ACCOUNTING RECORDS.
Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Vendor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) ye ars from the date of final payment under this Agreement.
11. TERMINATION OF AGREEMENT.
11.1 Grounds for Termination . City may, by written notice to Vendor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Vendor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Vendor shall be compensated only for those Services and Goods which have been adequately rendered to City, and Vendor shall be entitled to no further compensation. If terminated for cause because the Vendor refused or failed to deliver the Goods , the City may obtain Goods by whatever method it may deem expedient. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Goods, Vendor will be liable for and will pay the difference to City. Vendor may not terminate this Agreement except for cause.
The rights and remedie s of the City provided in this S ection shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
11.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Vendor to provide all finished or unfinished documents and data and other information of any kind prepared by Vendor in connection with the performance of the Services under this Agreement. Vendor shall be required to provide such document and other information within fifteen (15) days of the request.
11.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, goods and services similar to those terminated. 1186
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12. GENERAL PROVISIONS.
12.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Vendor:
City:
Long Beach BMW Motorcycles
2125 E. Spring St.
Long Beach, CA 90806
Attn: Charles Berthon, General Manager
City of Ontario
303 East “B” Street
Ontario, CA 91764-4196
Attn: Manuel Rebolledo, Fleet Services Superintendent
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate not ice on the date actual notice occurred, regardless of the method of service.
12.2 Subcontracting. Vendor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
12.3 Governing Law; Government Code Claim Compliance . This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disput ed work, claims and/or changed conditions, Vendor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code cla ims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Vendor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Vendor shall be barred from bringing and maintaining a valid lawsuit against the City.
12.4 Time of Essence . Time is of the essence for each and every provision of this Agreement.
12.5 City’s Right to Employ Other Vendors. City reserves right to employ other Vendors in connection with the Goods and Services provided under this Agreement.
12.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
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12.7 Assignment or Transfer. Vendor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transf erees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
12.8 Construction; References; Captions . Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Vendor include all personnel, employees, agents, and subcontractors of Vendor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.
12.9 Amendment; Modification . No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
12.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.
12.11 No Third Party Beneficiaries. Except to the extent expressly provided for in Section
12.7, there ar e no intended third party beneficiaries of any right or obligation assumed by the Parties.
12.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
12.13 Prohibited Interests. Vendor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Vendor, to solicit or secure this Agreement. Further, Vendor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Vendor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Vendor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the City ’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
12.14 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 1188
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12.15 Authority to Enter Agreement . Vendor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
12.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
12.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
SIGNATURES ON NEXT PAGE
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SIGNATURE PAGE FOR GOODS & SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND LONG BEACH BMW MOTORCYCLES
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the day and year first above written.
CITY OF ONTARIO LONG BEACH BMW MOTORCYCLES
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
Assistant City Clerk
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(BB&K 2024) Exhibit A-1 Goods and Services Agreement
EXHIBIT “A”
SCOPE OF SERVICES
Scope of Work
The intent of this ‘scope of work" is to describe the present and future fleet. Typical repairs and parts based on Police BMW Motorcycle utilized in our present fleet. The vast majority of repairs will be performed on Police BMW Motorcycle owned by the City of Ontario.
When such Equipment is in need of repairs and/or service, City of Ontario Fleet Services Management or assignee will contact the vendor and by mutual agreement determine the specifications of the equipment to be repaired and/or serviced with the price the vendor is going to charge.
The vendor will provide the City with an itemized quote of parts and labor prior to any commencement of work being required. The City of Ontario will provide a Purchase Order (PO) when the work has been authorized to vendor.
Pick Up and Delivery
If the vendor provides pickup and delivery service for vehicles or parts, the location of the City of Ontario Fleet Services is located at 1425 South Bon View Ave, Ontario, Ca 91761, or City of Ontario Police Department at 2500 S. Archibald, Ontario CA 91761. Normal business hours are on a Monday through Friday basis, 7:00 AM to 5:00 PM. In certain situations, and/or by mutual agreement vehicles and parts will be picked up by City of Ontario Fleet Services Personnel. If pickup and delivery service is not available, vehicles and parts will be picked up by City of Ontario Personnel.
All delivered picked up parts or completed work must be accompanied with an invoice.
The invoice must state the vendors name, part name with corresponding part number, purchase price, and a purchase order number, that was given at the time of order. Work orders must also include a brief description of any work or repairs performed or service recommended, and the estimated cost of repairs. If the estimate is later revised, the following information must be provided: time, date, and name of person making the revision, and recommended future repairs with all estimated costs. All estimate revisions must be presented in writing by email to the City of Ontario's Fleet Services Management to [email protected].
At the time of delivery the vendor's representative will pick-up any cores and issue a core credit receipt to the City of Ontario Parts Manager or Fleet representative. 1191
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(BB&K 2024) Exhibit B-1 Goods and Services Agreement
EXHIBIT “B”
SCHEDULE OF SERVICES
ALL SERVICES WILL BE ON AS NEEDED BASIS AND REQUESTED BY CITY OF ONTARIO FLEET MANAGEMENT OR DESIGNEE.
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EXHIBIT “C”
COMPENSATION
A. Rate per Hour Compensation
No. Labor Rate Per Hour
1. Labor Rate per Hour $146.00
B. Vendor Mark Ups / Discounts
Parts markup percentage or discount percentage -10%
Exhibit C-1
1193
Department: Public Works
Prepared By: Gil H Mars
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Andrea Ampig, Bonnie Tam
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 8
SUBJECT:
AN AMENDMENT TO THE DESIGN SERVICES AGREEMENT WITH HMC ARCHITECTS
FOR THE ONTARIO ARENA PLAZA
CITY OF ONTARIO
Agenda Report
July 15, 2025
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager, or his designee, to execute Amendment No. 3 to the Design Services Agreement with HMC Architects, of Ontario, California, to provide on-call architectural, space planning, and engineering design services for the Ontario Arena Plaza audio/visual system in the amount of $28,600 for a total not-to-exceed contract amount of $6,704,927, and authorization 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, contracts amendments within the authorization limits, and filing a notice of completion at the conclusion of all construction-related activities.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT:
The recommended Amendment No. 3 to the Design Services Agreement with HMC Architects is in the amount of $28,600 for a total not-to-exceed contract amount of $6,704,927. The Fiscal Year 2025-26 Adopted Budget includes appropriations in the Capital Projects - Measure Q Fund for the Ontario Arena Entertainment District Plaza project.
BACKGROUND & ANALYSIS:
On June 20, 2022, the Development Advisory Board approved a Development Plan to construct four mixed-use buildings totaling 63,655 commercial square feet and 694 dwelling units on 13.3 acres of land located at 4000 East Ontario Center Parkway within the mixed-use land use district of Piemonte Overlay of the Ontario Center Specific Plan. The overall concept for the approved project is to construct a mixed-use development that encourages entertainment, dining, and pedestrian activities by creating spaces for a variety of uses in proximity to each other. The focal feature of this mixed-use development is the 2-acre public Ontario Arena Plaza between the Toyota Arena on the west and the 5-story mixed-use buildings to the east and southeast.
On March 18, 2025, the City Council approved Amendment No. 2 to the Design Services Agreement 1194
with HMC Architects to prepare construction documents for two wine bars at the Ontario Arena Plaza. If Amendment No. 3 is approved, HMC Architects will prepare design documents for an integrated speaker system throughout the Ontario Arena Plaza that will sync with the outdoor LED video walls within the Plaza in collaboration with ASM Global (Toyota Arena), Adept (the Developer for the mixed-use development), and SWA Group (Ontario Arena Plaza Conceptual Design). 1195
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AME
NDMENT NO. 3 TO THE
DESIGN SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
HMC GROUP DBA HMC ARCHITECTS
1. Pa
rties and Date.
Thi
s Amendment No. 3 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and HMC Group dba HMC Architects, a Corporation (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Reci
tals.
2.1 Agreement. T he City and Consultant have entered i nto an ag reement ent itled “Design Services Agreement” dated January 28, 2025 (“Agreement”).
2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement and provide design services for Ontario Arena Plaza audio/visual system and increase the not -to-exceed amount by $28,600 for a new total contract amount not-t o-exceed $6,704,927. The Parties have heretofore entered into that Amendment No. 1 dated March 18, 2025, and Amendment No. 2 dated March 18, 2025.
2.3 Amendment Authority. This Amendment No. 3 is authorized pursuant to Section
3.37 of the Agreement.
3. Term
s.
3.1 Amendment. Section 3.1.1 and 3.10.1 of the Agreement is hereby amended in its entirety to read as follows:
“3.1.1 Sco
pe 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 PAUL S. LEON
MAYOR
ALAN D.
WAPNER
MAYOR PRO TEM
JIM
W. BOWMAN
DEBRA PORADA
DAISY MACIAS
COUNCIL MEMBERS
SHEILA MAUTZ
CITY CLERK
JA
MES R. MILHISER
CITY TREASURER
SC
OTT OCHOA
CITY MANAGER
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Project consistent with the provisions of this Agreement (hereinafter referred to as "Services"). The Services are more particularly described throughout this Agreement, including Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Consultant shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld. Additionally, Consultant shall comply with all Federal requirements applicable to the Services as set forth in Exhibit "A."
“3.10.1 Consultant’s Compensation for Basic Services . City shall pay to consultant, for the performance of all Services rendered under this Agreement, with the total not to exceed amount of Six Million Seven Hundred Four Thousand and Three Hundred Twenty-Seven Dollars ($6,704,327) (“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.”
Attachment A attached hereto and incorporated herein by reference is hereby added to Exhibit A to the Agreement.
3.2 Continuing Effect of Agreement . Except as amended by this Amendment No. 3, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 3. From and after the date of this Amendment No. 3, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 3.
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. 3.
3.4 Severability. If any portion of this Amendment No. 3 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 3 TO DESIGN SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO
AND HMC GROUP DBA HMC ARCHITECTS
I
N WITNESS WHEREOF, the Parties have entered into this Amendment No. 3 as of the day and year first above written.
CITY OF ONTARIO HMC GROUP dba HMC ARCHITECTS
By:
Its:
Printed Name:
By:
Its:
Printed Name:
[
If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
A
ttested By:
City Clerk
1199
Department: Utilities
Prepared By: Omar Gonzalez
Staff Member Presenting: Scott Burton, Utilities
General Manager
Reviewed By: Dennice Raygoza, Albert G
Gastelum, Michael Sigsbee
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 9
SUBJECT:
AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH KLEINFELDER, INC., FOR THE ARCHIBALD SEWER DIVERSION PROJECT
CITY OF ONTARIO
Agenda Report
July 15, 2025
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager, or designee to execute Amendment No. 9 to the Professional Services Agreement with Kleinfelder, Inc., of Ontario, California, for geotechnical and material testing services for the Archibald Sewer Diversion Project in the amount of $47,679, for a new total revised not-to-exceed amount of $1,738,885, and a term from March 5, 2024, to December 30, 2025.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT:
Proposed Amendment No. 9 to Kleinfelder, Inc. for the Archibald Avenue Sewer Diversion Project (DIF Project No. SW022 and Project ID No. SE1701) is for $47,679 for a revised total not-to-exceed amount of $1,738,885. If approved, additional appropriations will be included as needed in the Sewer Capital Fund and Old Model Colony (OMC) Local Adjacent Sewer fund at a future Quarterly Budget Update Report to City Council for approval.
There is no impact to the
General Fund.
BACKGROUND & ANALYSIS:
The City first contracted with Kleinfelder, Inc. in March 2023 following an extensive Request for Qualifications (RFQ) selection process for on-call geotechnical and materials testing services. Kleinfelder, Inc. provides professional services for various Citywide projects. Before tasks are issued, Staff solicits scope and fees from various consultants on an on- call geotechnical and material testing services list.
On March 5, 2025, the City Council approved Amendment No. 5 to the professional services agreement with Kleinfelder, Inc. along with a construction contract with Mamco Inc. for the Archibald Sewer Diversion Project. Amendment No. 5 was for $87,951, and proposed Amendment 1200
No. 9 will increase the Agreement amount by $47,679, bringing the total amount for this effort to $135,630.
The sewer project is located at two sites: Archibald Avenue (Francis Street to Cedar Street) and Philadelphia Street (Vineyard Avenue to Hellman Avenue); see Exhibit A. The work under this contract consists of installation of approximately 2,900 linear feet of 18-inch and 8-inch diameter sewer mains; installation of new sewer manholes; modifications of existing sewer manholes; laterals reconnections; connection to existing sewer systems at various street intersections; flow management to maintain existing sewer service; implementation of traffic control during construction; concrete and asphalt concrete pavement repair; and street restoration. Due to new sewer main interference, the project also relocates approximately 250 linear feet of 12-inch potable water pipe, including a temporary highline for water services, reconnection of water services, valves, and appurtenances; and pavement and concrete restoration.
As construction of the project progressed on Archibald Avenue, the Contractor encountered unstable soil conditions, which significantly slowed field production. Kleinfelder, Inc. was required to conduct field visits far more frequently than originally anticipated. Additionally, due to safety concerns—specifically the risk of soil collapsing into open trenches near active traffic, construction work was performed during night shifts in the affected area. Staff recommends approval of proposed Amendment No. 9 to support the additional efforts.
ENVIRONMENTAL REVIEW:
An Initial Study, a Negative Declaration or Mitigated Negative Declaration will not be necessary for the proposed projects per Article 19, section 15301, Class 1 – Existing Facilities. The project proposes a minor alteration to the existing sewer infrastructure within the specified street segments by replacing it with new sewer lines and associated components as described in the project description, generally in the same vicinity as the existing sewer lines. The project is maintenance in nature and will result in a new system that has increased durability and reliability for existing and future services. 1201
EXHIBIT A
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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. 9
TO THE PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
KLEINFELDER, INC.
1. Parties and Date.
This Amendment No. 9 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and KLEINFELDER, INC., a California Corporation, “Consultant”. City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. The City and Consultant have entered into an agreement entitled “On- Call Material Testing & Geotechnical Engineering Services” dated March 7, 2023 (“Agreement”).
2.2 Amendment Purpose. The City and Consultant desire to amend this Agreement to increase the compensation by Forty-Seven Thousand, Six Hundred Seventy-Nine Dollars ($47,679) for a total-not-to-exceed compensation of One Million, Seven Hundred Thirty-Eight Thousand, Eight Hundred Eighty-Five Dollars ($1,738,885) and include additional project specific proposal to the Exhibit A through Exhibit B. This increase in compensation is for the additional scope of work listed in the attached Consultants’ Proposal titled “Geotechnical Engineering and Materials Testing Services for OMUC Contract No. UT 1016 Archibald Sewer Diversion Project” and dated May 13, 2025.
2.3 Amendment Authority. This Amendment No. 9 is authorized pursuant to Section
3.2.4 of the Agreement.
3. Terms.
3.1 Amendment. Section 3.2.1, Exhibit A through Exhibit B of the Agreement is 1203
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hereby amended in its entirety to read as follows:
3.2.1 Compensation. Consultant shall receive compen sation, including authorized reimbursements, for all Services rendered under thi s Agreement at the rates set forth in Exhibit "A" and Exhibit “B” attached hereto and incorporated herein by referen ce. The total compensation shall not exceed One Million, Seven Hundred Thirty-Eight Thousand, Eight Hundred Eighty-Five Dollars ($1,738,885) without written approval of the City Council or City Manager, as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
Exhibit “A” - SCOPE OF SERVICES is hereby amended to add Attachment A which is hereto and incorporated herein by reference. All ot her previously added or deleted scope of services are retained in their entirety.
Exhibit “B” – SCHEDULE OF SERVICES is hereby deleted in its entirety and replaced with Attachment B attached hereto and incorporated herein by reference.
3.2 Continuing Effect of Agreement. Except as ame nded by this Amendment No. 9, all other provisions of the Agreement remain in full fo rce and effect and shall govern the actions of the parties under this Amendment No. 9. From and after the date of this Amendment No. 9, whenever the term “Agreement” appears in the Agreement, it s hall mean the Agreement as amended by this Amendment No. 9.
3.3 Adequate Consideration. The Parties hereto ir revocably stipulate and agree that they have each received adequate and independent conside ration for the performance of the obligations they have undertaken pursuant to this Amendment No. 9.
3.4 Severability. If any portion of this Amendmen t No. 9 is declared invalid, illegal, or otherwise unenforceable by a court of competent jur isdiction, the remaining provisions shall continue in full force and effect.
3.5 Integration. This Amendment represents the en tirety of the Parties’ understanding relating to the subject of this Amendment, includin g written or verbal communications between the Parties, which shall have no relevance unless expre ssly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 9 TO PROVIDE
ON-CALL MATERIAL TESTING AND GEOTECHNICAL ENGINEERING SERVICES
BETWEEN THE CITY OF ONTARIO
AND KLEINFELDER, INC.
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 9 as of the day and year first above written.
CITY OF ONTARIO KLEINFELDER, INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
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Attachment A
Exhibit “A” - SCOPE OF SERVICES –
Add scope of services proposal “ Kleinfelder Proposal to Provide On-Call Material Testing and Geotechnical Engineering Services for OMUC Contract No. UT 1016 Archibald Sewer Diversion Project”
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Attachment B
Exhibit “B” – Schedule of Services
The services shall be completed within the durations specified below, which beginning ten (10) calendar days after Notice to Proceed is issued:
Amendment
No.
Task
No. Project Title
Total Not to
Exceed Fee
PO
Number
Contract 0
2022 Spring Alley CDBG Pavement
Rehabilitaiton Project $18,440.00 PO-00163
No. 1 1
UT 1617-02 Well Abandonment 11, 15 & 17, &
26 $38,317.00
No. 2 2 UT1053 - AMI Antenna Project - Phase 1 $66,554.00 No. 3 3 Add $400,000 for a NTE of $466,554 $466,554.00
3.1 Soils Report Test for 122 S Vine Ave (Fallis
House - TCC) $466,554.00
3.2 Additional Materials Testing for 2022 Spring
Alley CDBG Pavement Rehabilitaiton Project $466,55 4.00
3.3 D&C23-015 Anthony Munoz Gymnasium Geo-
Technical $466,554.00
3.4 2024 Spring Pavement Rehabilitation Project $ 466,554.00
3.5 D&C23-002 404N Euclid Demo $466,554.00
3.6 2024 Street Maintenance Slurry Seal, Cape Seal
and CDBG Pavement Management
Rehabilitation $466,554.00
3.7 AC Coring Transit $466,554.00
3.8 D&C23-26 Downtown Mobility Hub Soils Report $ 466,554.00
3.9 D&C21-001A New Fire Admin Building $466,554.0 0
3.1 D&C22-012 City Hall Parking Structure $466,5 54.00
3.11 ATP Cycle 5 - Vine Avenue and B Street Bike
Boulevard $466,554.00
3.12 Additional Material Testing for 2024 Street
Maintenance Slurry Seal, Cape Seal and CDBG
Pavement Management Rehabilitation $466,554.00
3.13 2025 Spring CIP Projects $466,554.00
3.14 D&C23-26 Downtown Mobility Hub Soils Report $466,554.00
3.15 2025 Fall Pavement Rehabilitation Project $4 66,554.00 $466,554.00
No. 4 4 D&C22-012 City Hall Parking Structure $928,535.00 No. 5 5 UT1016 Archibald Sewer Diversion Project $1,016,486.00 No. 6 6
SM2302/SE2505 Sultana Avenue Storm Drain,
Street and Sewer Improvements Project $1,351,242.00
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No. 7 7
D&C21 -005 Grand Park Geotechnical
Observation, Materials Testing and Burrowing
Owl Survey Services
$1,555,552.00
No. 8 8
UT 1067, 1070, 1077 – Laurel Avenue Sewer
Main Improvements, Nocta Street Sewer Main
Improvements, and Nocta Street Private
Sewer Lateral Improvements $1,691,206.00
No. 9 9
UT1016 Archibald Sewer Diversion Project
(change order) $1,738,885.00
1208
Department: Public Works
Prepared By: Gil H Mars
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Andrea Ampig, Bonnie Tam
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 10
SUBJECT:
AMENDMENTS TO THE PROFESSIONAL SERVICES AGREEMENTS WITH TRANSTECH ENGINEERS, INC., FOR ON-CALL PROJECT MANAGEMENT
CITY OF ONTARIO
Agenda Report
July 15, 2025
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council take the following actions:
A
.
Authorize the City Manager, or his designee, to execute Amendment No. 11 to the Professional Services Agreement with Transtech Engineers, Inc., of Chino, California, to extend the contract term to June 30, 2027;
B
.
Authorize the City Manager, or his designee, to execute Amendment No. 6 to the Professional Services Agreement with Transtech Engineers, Inc., of Chino, California, to provide on-call construction management services for the City Services Building project in the amount of $2,035,800 for a revised total not-to-exceed contract amount of $6,055,300; and C
.
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)
Operate in a Businesslike Manner
FISCAL IMPACT:
The recommended Amendment No. 6 to the Professional Services Agreement with Transtech Engineers, Inc. is for the amount of $2,035,800 for a revised total not-to-exceed contract amount of $6,055,300. The Fiscal Year 2025-26 Adopted Budget includes appropriations in the Capital Projects Fund for the City Services Building project.
BACKGROUND & ANALYSIS:
The City has a need for on-call project management services for work that cannot be provided by City Staff. Transtech Engineers, Inc. has continued to provide the City with as-needed project management services for various projects, new infrastructure, and new development.
1209
On April 4, 2023, the City Council approved Amendment No. 10 to the Professional Services Agreement with Transtech Engineers, Inc. for the City Hall Parking Structure Project. The recommended Amendment No. 11 to the Professional Services Agreement will extend the contract term to June 30, 2027, to allow Transtech Engineers, Inc. to complete the project management services provided for the City Hall Parking Structure project and other previously approved projects such as Fire Station No. 1, Fire Administration Building, and Grand Park.
On December 17, 2024, the City Council approved Amendment No. 5 to the Professional Services Agreement with Transtech Engineers, Inc. for the D-Block Parking Structure project. The recommended Amendment No. 6 includes on-call construction management services for the City Services Building project. The City Services Building is a 3-story, 67,000 sq ft office space, accommodating approximately 345 employees for seven (7) City departments located adjacent to City Hall.
Based on the numerous projects Transtech has provided construction management services for in the past, Staff recommends approving Amendment No. 6 to the Professional Services Agreement with Transtech Engineers, Inc.
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AME
NDMENT NO. 6 TO THE
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
TRANSTECH ENGINEERS, INC.
1. Pa
rties and Date.
Thi
s Amendment No. 6 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Transtech Engineers, Inc. a Corporation (“Consultant ”) City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Reci
tals.
2.1 Agreement. T he City and Consulta nt hav e entered i nto an ag reement ent itled “Professional Services Agreement” dated April 4, 2023 (“Agreement”).
2.2 Amendment Purpose. The City and Consultant desire to amend the Agreement to increase the contr act amount by $2,035,800 for the project management of the City Services Building. The Parties have heretofore entered into that Amendment No. 1 dated January 16, 2024, Amendment No. 2 dated March 5, 2024, Amendment No. 3 dated March 5, 2024, Amendment No. 4 dated August 20, 2024, and Amendment No. 5 dated December 17, 2024.
2.3 Amendment Authority. This Amendment No. 6 is authorized pursuant to Section
3.7.14 of the Agreement.
3. Term
s.
3.1 Amendment . Section 3.1.1 and 3.2.1 of the Agreement is hereby amended in its entirety to read as follows:
“3. 1. 1 G
eneral Scope of Services . Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering and related consulting services necessary PAUL S. LEON
MAYOR
ALAN D.
WAPNER
MAYOR PRO TEM
JIM
W. BOWMAN
DEBRA PORADA
DAISY MACIAS
COUNCIL MEMBERS
SHEILA MAUTZ
CITY CLERK
JA
MES R. MILHISER
CITY TREASURER
SC
OTT OCHOA
CITY MANAGER
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for the Project (" Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.”
“3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “A” attach ed hereto and incorporated herein by reference. The total
compensation shall not exceed Six Million Fifty-Five Thousand Three Hundred Dollars ($6,055,300) without written approval of the City Council or City Manager, as applicable. Extra work may be authorized, and if authorized, will be compensated at the rates and manner set forth in this agreement.”
Attachment A attached hereto and incorporated herein by reference is hereby added to Exhibit A t o the Agreement.
3.2 Continuing Effect of Agreement . Except as amended by this Amendment No. 6, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 6, From and after the date of this Amendment No. 6, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 6.
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. 6.
3.4 Severability. If any portion of this Amendment No. 6 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 6 TO THE PROFESSIONAL SERVICES
AGREEMENT BETWEEN THE CITY OF ONTARIO
AND TRANSTECH ENGINEERS, INC.
IN WITNESS WHEREOF, the Parties have entered this Amendment No. 6 as of the day and year first above written.
CITY OF ONTARIO TRANSTECH ENGINEERS, INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
Approved By:
Scott Ochoa
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
1213
13367 Benson Avenue | Chino, CA 91710 | T 909 595-8599 | F 909 590-8599 www.transtech.org
855.595.2495 (toll-free)
Ju
ne 6, 2025
C
ity of ONTARIO
1333 S. Bon View Ave
Ontario, CA 91761
Attention: Dan Beers, Design & Construction, Director
Proposal, Transtech Services for the proposed City Services Building De
ar Mr. Beers:
A
s requested, Transtech is pleased to submit this Task Order Proposal under our Master Contract with the City for the subject project.
The
following information provided by the City is used in developing our scope nd budget for this project:
Delivery Method: DBB (Design-Bid-Build)
Project Entitlement, Plan Check, Approval: Completed 2025 Project Advertisement, Bidding and Award: July – September 2025 Construction Start: September 2025
Construction Duration: 24 months
Estimated Construction Cost: $50 million
P
ROPOSED SERVICES
S
ervices During Project Entitlement, Plan Check, Approval:
Since this is a design bid -build project, the plans and specifications are being prepared by the design architect, and the City staff is performing necessary plan check and project management. No work effort by Transtech is anticipated during this phase.
S
ervices During Project Advertisement, Bidding and Award:
Since this is a design bid -build project, the plans and specs are being prepared by the design architect, and the City staff will compile the bid package. It is assumed the design architect will respond to technical questions asked by the bidders, and City will compile and issue any addenda as necessary. It is also assumed that the design architect will review/analyze the schedule of values (‘SOV’) for accuracy and completeness and assist the City in overall bid review. If requested by the City, Transtec h will provide assistance .
Attachment A
1214
City Services Building Project
Task Order Proposal 2
Limited work effort by Transtech is anticipated during this phase.
Services During Construction:
1. Inclusion of and coordination with project stakeholders.
2. Review, coordination, and maintenance of all schedules.
3. Tracking of BIC issues.
4. Assistance with any required public outreach.
5. Verification and enforcement of any special conditions established during the design phase.
6. Progress payment review and processing.
7. Control of changed work including preparation of Field Directives and review of Change Order Requests (‘CORs’).
8. Weekly construction meetings either lead by the Prime Contractor or the PM /CM as agreed.
9. Preparation and distribution of any required reports.
10. RFI review, distribution, and response consolidation.
11. Documentation of construction progress by both photo and video.
12. Review of the work for compliance with the construction documents.
13. Quality Control/Quality Assurance of the work including preparation of daily inspector diaries, maintenance of special inspection reports, maintenance of material placement documentation, maintenance of material testing information, maintenance of material delivery tickets, assistance with pad certification, and review and/or filing of QC/QA manuals.
14. Maintenance of contract documents including ‘as -built’ drawing , which will be prepared by the constriction contractor as “field red-lines”.
15. Tracking of contract time (where the Contract Time is defined in working days).
16. Assistance with labor compliance.
17. Tracking of submittals throughout construction.
18. Tracking of construction schedule.
19. Tracking of warrantees and guarantees.
20. Substantial Completion and Project Closeout.
City will provide:
• Required code Inspections and approvals (by appliable City Departments). • City will provide soils, materials testing and inspection (thru an on -call consultant under contract with the City).
• City will provide 3
rd party specialty inspections (thru an on- call consultant under contract with the City).
• For labor compliance, the City only requires the CPR is uploaded to DIR web site by the contractor.
1215
City Services Building Project
Task Order Proposal 3
ESTIMATED FEE:
Staff Level Av.
hrs/month
Duration
(months) Total Hrs Av. Rate Est. Budget Phase
Totals Project Totals
0 0 0 0 0 0 $0
Principal, Sr. Eng. PM, CM 1 3 3 $225 $675
Tech PMCM Support Staff,
Sr. Field CM 1 3 3 $210 $630
Project Controls, Contract
Admin., Associate / Office
Eng Level
1 3 3 $165 $495
Principal, Sr. Eng. PM, CM 110 24 2,640 $225 $594,000
Tech PMCM Support Staff,
Sr. Field CM 160 24 3,840 $210 $806,400
Project Controls, Contract
Admin., Associate / Office
Eng Level
160 24 3,840 $165 $633,600
$2,035,800
The Time/Hrs and Budget Allocation presented above represent a best estimate of the Transtech effort anticipated to carry this project per the scope of services.
Actual hours and dollar amounts may flex and re-allocated within various tasks as needed.
Staff Classifications, Hourly Rates and Hours are average and may vary within the established total budget.
Billing is based on actual hours spent.
GRAND TOTAL
$2,034,000
ESTIMATED BUDGET
Project Phase
$2,035,800
$1,800
Services During
Construction
Services During Bidding and
Contract Award
Services During Project
Entitlement, Plan Check,
Approval
Thank you for the opportunity to submit this Task Order Proposal.
Should you have any questions, or require additional information, please contact us.
Respectfully submitted.
Robert Quintero
Robert Quintero, Sr. Project Manager
E: [email protected]
C: 626-807-4928
O: 909-595-8599
1216
46700.00100\33287662.1