(1) Approval of the digital freeway sign shall be subject to the approval of a Digital Sign and Billboard Removal Agreement between the City and the property owner;
(2) A minimum of 2 existing, legal nonconforming billboards shall be removed, both of which must be currently located within the City;
(3) The area is developed with a legally established permitted land use;
(4) The proposed sign would not create a traffic or safety problem with regard to on-site access, circulation, or visibility;
(5) The proposed sign would not interfere with on -site parking or landscaping required by City ordinance or permit;
(6) The property has at least 600 linear FT of freeway frontage;
(7) The proposed sign will display both public and private information;
(8) The overall design of the sign, including massing, proportion, and scale shall be subject to review and approval of a Sign Permit, and
(9) For projects of regional significance as determined by the City Manager, the relocation of billboards may be waived and recommended for review by the City Manager to the City Council.
3. Electronic Message Center. An Electronic Message Center may be incorporated into a freeway sign for a public or private school; public facility or service; convention centers, arenas and other similar places of assembly; and auto malls and shall be subject to review and approval by the Planning Commission. An Electronic Message Center shall comply with the following requirements:
638
Division 8.01—Sign Regulations
Ontario Development Code Page 8.01-27 (Rev. 12.03.202401.20.2026) a. The Electronic Message Center display shall not include any message or pictorial that is in motion or appears to be in motion;
b. The Electronic Message Center display shall not change the intensity of illumination;
c. The Electronic Message Center display shall not change the message or pictorial more than once every 4 seconds;
d. No Electronic Message Center shall be placed within 1,000 FT of another Electronic Message Display located on the same side of the freeway; and
e. An Electronic Message Center shall only advertise the business conducted, services rendered, or goods produced or sold upon the property on which the display is placed.
4. Electronic Text Display . An Electronic Text Display may be incorporated into a monument sign to facilitate a fuel pricing sign required pursuant to BPC Sections 13530 through 13540, or for the purpose of providing messages and information related to public or private schools, government facilities, facilit ies for religious assembly, theaters, convention centers, arenas, and other similar places of assembly. An Electronic Text Display shall comply with the following requirements:
a. An Electronic Text Display shall not include any pictorial display;
b. An Electronic Text Display shall not change the intensity of illumination;
c. An Electronic Text Display shall not change the message more than once every 4 seconds;
d. No Electronic Text Display shall be placed within 600 feet of another Electronic Text Display located on the same side of the street, excepting fuel pricing signs provided pursuant to BPC Sections 13530 through 13540; and
e. An Electronic Text Display shall only advertise the business name, and events and services conducted on the property upon which the Electronic Text Display is installed.
D. Building Wall and Fascia Signs.
1. Wall and/or fascia signs shall consist of individual channel letters placed flat against the exterior wall or parapet of a building, or suspended from the building eaves or overhang, or from the ceiling of a covered walkway, and having an overall depth of no more than 12 inches.
A suspended sign shall have a clear space of at least 8 FT between the bottom of the sign and the surface of any walkway that may pass under the sign.
2. Acceptable wall and/or fascia sign designs include one or more of the following elements:
a. Halo lit channel letters;
b. Standard channel letters;
c. Front and halo lit channel letters;
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(Rev. 12.03.202401.20.2026) Page 8.01-28 Ontario Development Code
d. Pin mounted sandblasted, textured, and/or burnished metal- leaf faced letters;
e. Signs mounted to hard canopies, eyebrows, or other projecting architectural elements, such as screens, grids or mesh, or etched, polished, patina or abraded materials; and/or
f. Mixed media signs (utilizing the designs described in Subparagraphs D.1.2.a through e, above), incorporating imagery and icons /logos. Although simple rectangular cabinet signs are generally not allowed, mixed media signs may be composed of several elements, one of which may be a sculptured cabinet; however, the cabinet sign shall not exceed 25 percent of the total sign area of each sign.
3. Wall and/or fascia signs may be located on an exterior building elevation that :
[i] fronts/faces a public street, or [ii] faces an interior side or rear of a site , and contains a public entrance, pursuant to the standards prescribed by Table 8.01 -1 (Sign Regulation Matrix), of this Section.
4. The characters that comprise a sign shall not occupy more than 75 percent of the length of the building wall or fascia upon which it is placed.
5. Electrical raceways and conduits shall be placed so that they are not within public view. Where this is physically impractical or doing so would damage significant architectural features or materials, the Zoning Administrator may grant a waiver from this requirement, provided all conduits, raceways, and similar devices are kept as small as possible and are painted the same colors as adjacent wall surfaces.
6. Electrical raceways shall not extend beyond the outside edges of the sign copy and shall be painted to match the color of the background on which they are placed.
7. Signs shall be placed flat against the wall and shall not project from the wall more than required for normal construction purposes and in no case more than 12 inches. The Zoning Administrator may modify this requirement in special circumstances where a pr ojection greater than 12 inches may be desirable to allow the creation of an especially creative and unique sign design.
8. Signs shall not be placed to obstruct any portion of a window or cover architectural elements, such as cornices, transom windows, vertical piers and columns, and similar elements.
E. Address Signs Required. The City finds that it is in the interest of public safety that all street addresses be clearly visible. Unless otherwise authorized in writing by the Police and Fire Departments, all permanent structures within the City shall display street address numera ls of a size, color, and location, which are clearly visible from a public right -of-way. Address signs shall not count toward the maximum sign area allowed by this Division.
F. Sign Programs.
1. A Sign Program may be allowed pursuant to Section 4.02.075 (Sign Programs) of this Development Code, for the purpose of:
a. Providing coordinated signing within a development project; 640
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b. Utilizing common design elements; and
c. Integrating the design of signs with the context of the building and landscape design, to form a unified architectural statement.
2. A Sign Program may allow certain deviations from the standards prescribed by Table 8.01- 1 (Sign Regulation Matrix) of this Division, limited to: [i] a 2030 percent increase in maximum sign area, [ii] an increase in the maximum number of signs allowed, and [iii] the use of decorative exposed neon , and [vi] any other modifications deemed appropriate for the building(s) and site context, as determined by the Planning Director . In approving such deviation(s), the following findings must be clearly established:
a. The Plan'sSign Program’s contribution to the overall design quality of the site and the surrounding area will be superior to the quality that would otherwise result under regulations normally applicable to the site;
b. The proposed signs are compatible with the style or character of existing improvements on the site and are well-related to each other; and
b.c. Approval of the Sign Program will not be detrimental to the public health, safety or welfare, or be materially injurious to properties or improvements in the vicinity; and
c.d. Any deviations from the standards prescribed by Table 8.01 -1 (Sign Regulation Matrix) of this Development Code are fully consistent with the purposes of this Development Code and any applicable specific plan or planned unit development .
3. A Sign Program may allow the use of complex-shaped (i.e., Polyhedron) sculptured cabinets if dimensional elements are also incorporated, such as burnished metal-leaf faced letters that are pin mounted from the cabinet face, or decorative exposed neon.
G. Street Banners and Street Banner Programs.
1. Street Banners.
a. No street banner, flag, pennant, or street decoration shall be placed or installed over and/or above any street or other public thoroughfare, without first obtaining City Manager approval, and the issuance of an encroachment permit by the City Engineer.
b. No person, either as principal, agent, or otherwise, shall hang or suspend any street banner above any street or other public thoroughfare, or cause the same be done, unless a Street Banner Program has approved pursuant to the requirements of Paragraph G.2 (Street Banner Programs) of this Section.
c. A street banner, flag, pennant, or street decoration shall be safely suspended not less than 17 FT above a public street, upon approval of the City Engineer and Building Official.
d. A street banner, flag, pennant, or street decoration shall not contain the name or designation of any individual, firm, or corporation as an advertisement for private gain.
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Division 8.01—Sign Regulations
(Rev. 12.03.202401.20.2026) Page 8.01-30 Ontario Development Code e. A street banner, flag, pennant, or street decoration shall not remain in place longer than 30 days from the date permission is granted by the City Manager pursuant to Subparagraph G.1.a of this Section.
f. The Building Official shall, upon receipt of the required application, issue a permit for the erection and maintenance of a street banner, flag, pennant, or street decoration, according to [i] the terms of the City Manager's approval, [ii] the encroachment permit issued by the City Engineer, and [iii] the Street Banner Program described in Paragraph G.2 (Street Banner Programs), below (if required).
2. Street Banner Programs . A Street Banner Program shall be subject to review and approval by the Zoning Administrator, and must adhere to the following guidelines:
a. Application. The street banner program application shall contain the following minimum information:
(1) Street Banner Design—A fully dimensioned plan that clearly depicts the street banner design, materials, colors, and letter style;
(2) Street Banner Elevations—A fully dimensioned elevation drawing(s) depicting streetlight poles with each proposed banner type attached;
(3) Street Banner Location —A site plan drawn to scale, which depicts the specific location of each proposed street banner and the affected streetlight poles; and
(4) Equipment—All hardware and bracketry necessary for mounting the proposed street banner(s) to the affected streetlight poles, which shall meet or exceed City specifications.
b. Private Business Recognition. Private sponsorship of street banners shall only be permitted in association with an approved street banner program, with identification of the sponsor regulated as follows:
(1) Placement—The street banner sponsor may be identified on each street banner by lettering no greater than 6 inches in height, which runs the width of the banner, and covering no more than 10 percent of the banner area;
(2) Font—A uniform font type, style, size, and color shall be used for banner sponsor names within a given banner program; and
(3) Graphics—There shall be no private logos or trademark graphics allowed.
c. Maintenance. At a minimum, street banners shall be removed for cleaning annually, and shall be removed for repair or replacement when worn, torn, or faded. The City may require that street banners be alternated seasonally (3 to 4 times per year). Furthermore, Street banners shall be removed for repair or replacement when worn, torn, or faded.
H. Awnings and Canopies, and Outside Umbrellas.
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Division 8.01—Sign Regulations
Ontario Development Code Page 8.01-31 (Rev. 12.03.202401.20.2026)
1. As a design feature of any building, structure, or business establishment, all awnings and canopies, and outside umbrellas, shall be reviewed in the same manner as a sign, ensuring enhancement of the building or structure in which it is placed, erected, or installed.
2. Awnings and canopies that contain advertising shall be counted toward the total allowable signing for the business that it serves.
3. Umbrellas shall not contain advertising.
4. The use of backlit awnings and/or canopies shall be prohibited.
I. Accent Lighting.
1. As a design feature of any building, structure, or business establishment, all accent lighting shall be reviewed in the same manner as a sign, ensuring enhancement of the building or structure in which it is placed or installed. Accent lighting should be limited to confined areas, such as building entries, architectural features, or used to reinforce specific architectural elements, such as tower and cornice elements.
2. Accent lighting elements and luminaires placed directly on a building façade shall be shielded. Lighting elements and luminaires placed directly on a building façade so as to be directly exposed to public view, is prohibited.
J. Construction, Installation and Maintenance.
1. Construction. The construction and installation of signs shall be enforced and administered by the Building Official. All signs and advertising structures shall be designed and constructed to withstand wind loads, dead loads, and lateral forces as required by the City 's Building Code and the provisions of this Division.
2. Identification. Every sign or other advertising structure hereafter erected in the City shall have an identifying number, name of erector, installation year and, if illuminated, the voltage plainly placed on the exterior surface of the sign body, in a location where the information is readily visible after erection and installation.
3. Illumination.
a. General Requirements.
(1) Signs with electrical components shall be constructed, inspected, and approved by the Underwriters Laboratory (UL), or equal, and a label of approval from the laboratory shall be affixed to the sign in plain view.
(2) Awnings with back-lighting are prohibited.
(3) Light sources (luminaires) used for externally illuminated signs shall not be visible within 100 FT of any residential zoning district. Internally illuminated signs visible from any residential zoning district shall not be illuminated between the hours of 11:00PM and 6:00AM, unless they identify an establishment open for business during those hours.
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(Rev. 12.03.202401.20.2026) Page 8.01-32 Ontario Development Code (4) Signs shall not have exposed fluorescent tubes or incandescent bulbs exceeding 15 watts, and the brightness of luminous or backlit signs shall not exceed 250 footlamberts (fl).
b. Internally Illuminated Signs. The illumination level of a sign shall be reduced if it is determined to be excessive as a result of City evaluation. Illumination shall be considered excessive if the illumination level:
(1) Is substantially greater than the illumination level of other nearby signs;
(2) Interferes with the visibility of other signs, or with the perception of objects or buildings in the vicinity of the sign;
(3) Directs glare toward streets or motorists;
(4) Adversely impacts nearby residents or residential neighborhoods; and/or
(5) Reduces the nighttime readability of the sign.
c. Externally Illuminated Signs. The light source for externally illuminated signs shall be arranged and shielded to substantially confine all direct light rays to the sign face, and away from streets and adjacent properties.
4. Maintenance. All signs, together with their supports and appurtenances, shall be kept neatly painted and posted. The Zoning Administrator, Building Official, or Code Enforcement Director may order the removal of any sign that is not maintained in accordance with the provisions of this Division.
K. Political Signs.
1. Purpose.
a. The purpose of these political sign regulations is to identify the compatibility between the utilization of political signs, the protection of the right to privacy of individuals, and the quiet and undisturbed enjoyment of property.
b. It is recognized that there have been abuses in the placement of political signs within the City, including: [i] trespassing upon private property; [ii] placement of political signs without permission from the property owner; [iii] placement of political signs in such a fashion as to make it difficult to remove them; [iv] littering caused by dislodged political signs; [v] sight distance hazards to traffic due to sign size and location; [vi] distracting appearance; [vii] aesthetically displeasing impact; [viii] unnecessary proliferation; and [ix] other reasons, all of which are determined to be contrary to the best interests of the community, and in oppositi on to the public health, safety and welfare.
c. The reasonable regulation of political signs will obviate many of the objections that have been raised to the unregulated placement of such signs.
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Division 8.01—Sign Regulations
Ontario Development Code Page 8.01-33 (Rev. 12.03.202401.20.2026) d. It is recognized that to the extent that placement of political signs is not contrary to the purposes stated herein, it is in the best interests of the City and its inhabitants to allow political expression, and, for that reason, it is but to avoid the total prohibition of such signs.
e. It is believed that responsibility for the placement of political signs should lie with the candidate for public office, the proponents and opponents of ballot measures, and the various political committees connected therewith. It is recognized that political signs are printed by, or at the direction of, those listed herein, and that the ultimate responsibility for the distribution of such signs and their placement lies with them.
2. Definition. The term " political sign, " as used herein, means any election or nonelection sign, advertising structure, or display, which communicate any message or idea identifying, supporting, opposing, promoting, or conveying a position upon, or relating to, any political cause or issue, or candidate for public office, or proposition or issue connected with any local, special, state, or national election.
3. Political Sign Registration. Pursuant to BPC Section 5405.3, any candidate (or their designee) or the proponents of a ballot measure who seek to utilize political signs, shall first file a Statement of Responsibility with the Code Enforcement Department, on a City registration form.
The registrant shall be responsible for removing the temporary political sign and may be required to reimburse the City for any cost incurred for temporary political sign removal.
4. Permitted Signs . Political signs, as herein defined, shall be permitted within any zoning district subject to compliance with all of the rules and regulations set forth in Paragraph K.5 (Regulations) herein.
5. Regulations.
a. No provision in this Development Code shall be so construed as to prohibit the placing of temporary political signs.
b. No political sign shall be installed or displayed sooner than 45 days preceding the election for which the sign is intended.
c. No political sign shall exceed 16 SF in total area, except that a double - faced sign, not exceeding 16 SF on each side, shall be permitted.
d. No political sign shall exceed an overall height of 8 FT, except if such sign shall be within an enclosed building or structure.
e. No candidate for public office, proponent or opponent of ballot measures, and/or any political committees connected therewith, shall post more than one political sign per lot or parcel.
f. No political sign shall be lighted either directly or indirectly.
g. No political sign shall be placed on private property, vacant or otherwise, without the permission of the owner of the property.
h. No political sign shall be placed or affixed to a tree, fence, post, utility pole, or any structure, by glue, nails, or screws.
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Division 8.01—Sign Regulations
(Rev. 12.03.202401.20.2026) Page 8.01-34 Ontario Development Code i. No political sign shall be posted on any public property or in the public right- of-way.
j. No political sign shall be placed within the right -of-way of any highway, or with 660 FT of the edge of, and visible from, the right-of-way of a landscaped freeway.
k. No political signs shall be posted in violation of any other provisions of this Development Code.
l. All political signs shall be removed within 10 days following the date of the election for which the sign was intended.
6. Removal of Illegally Placed Political Signs. The Building Official or Community Improvement Manager may cause the removal of any sign placed contrary to any provision of the Political Sign provisions contained herein (commencing with Subsection K (Political Signs) of this Section).
8.01.025: Design Guidelines
A. Introduction.
1. The following design guidelines are intended as a reference to assist the designer in understanding the city' s goals and objectives for high quality sign design, construction, and placement throughout the city. These guidelines are intended to complement the mandatory standards contained in Section 8.01.02 0 (Sign Standards) of this Division, by providing good examples of potential design solutions and by providing design interpretations of the various mandatory requirements.
2. The design guidelines are general and may be interpreted with some flexibility in their application to specific projects. The guidelines will be utilized during the city's review of a sign program or sign plan to encourage the highest level of design quality, while at the same time providing the flexibility necessary to encourage creativity on the part of the designer. Nonetheless, unless there is a compelling reason, these design guidelines shall be observed.
B. General Guidelines.
1. Use a Brief Message. The fewer words used, the more effective the sign. A sign with a brief message is quicker and easier to read, looks cleaner and is more attractive. A sign should only include the name and/or nature of the business, and in addition to the name, may contain a maximum of three words describing the business or service provided.
2. Avoid Overly Intricate Fonts . Signs utilizing very intricate font styles are generally difficult to read and reduce a sign's ability to communicate effectively.
3. Avoid Faddish and Peculiar Fonts . Signs utilizing faddish or peculiar fonts may look good today, but soon go out of style. The image conveyed may quickly become that of a dated and unfashionable business.
4. Sign Colors and Materials. The colors and materials of a sign should be selected so that they contribute to sign legibility and design integrity. Even the most carefully thought out sign 646
Division 8.01—Sign Regulations
Ontario Development Code Page 8.01-35 (Rev. 12.03.202401.20.2026) may be unattractive and a poor communicator because of poor color selection. Dayglow, fluorescent, and overly bright or loud colors should not be used.
5. Provide Contrast Between Background and Letters/Symbols . Use significant contrast between the sign 's letter/symbol color and its background color. If there is little contrast in the hue (shade or tint) and intensity (brightness) between the background and letter/symbol colors, it will be difficult to read.
6. Avoid Too Many Different Colors . The use of too many different colors will overwhelm the basic function of communication. The colors compete with sign content for the viewer's attention. The limited use of accent colors can increase legibility, while large areas of competing colors tend to confuse and annoy.
7. Sign Placement. Generally, building wall and fascia signs should be located within the middle 75 percent of the building frontage, measured from tenant line to tenant line for multiple tenant buildings, and measured across the full width of the building elevation for single tenant buildings. The Zoning Administrator shall have the authority to modify this requirement where it can be shown that:
a. The directed placement would severely limit proper sign placement; or
b. The directed placement would be contrary to the sign placement approved by a Development Plan.
8. Proportion, Scale and Rhythm of Sign Placement . Signs should be placed consistent with the proportions and scale of building elements within a building 's facade:
a. A particular sign may fit well on a large, plain wall area, but would overpower the finer scale and proportion of the lower storefront.
b. Signs can be used to establish facade rhythm, scale, and proportion where such elements are weak in the building design. On buildings having a monolithic or plain facade, signs can be used to establish or continue appropriate design rhythm, proportion, and scale.
c. The proportion of letter area to sign background area should be carefully considered. If the letters take up too much of the background area, they may be harder to read — large letters are not necessarily more legible than smaller ones.
d. Generally, the characters that comprise a sign should not occupy more than 70 percent of the area of a sign's background.
9. Pedestrian Signs . Signs oriented to pedestrians should be smaller in scale. The pedestrian -oriented sign is usually read from a distance of 15 to 20 feet, whereas the vehicle- oriented sign is designed to be viewed from a much greater distance. The closer the sign's viewing distance, the smaller the sign needs to be.
10. Freestanding Signs . Freestanding signs should incorporate the materials and architectural features used in the building(s) they serve.
C. Building Wall and Fascia Signs.
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1. Building wall and fascia signs should be compatible with the predominant visual elements of the building. Commercial centers and offices, industrial parks, business parks, and other similar facilities, are required to be part of a sign program in accordance with the provisions of Section 4.02.080 (Sign Programs) of this Development Code.
2. Where there is more than one sign for a business (e.g., single tenant buildings) or group of businesses (e.g., multiple tenant buildings, commercial centers, or business or industrial parks), all signs should be complementary to one another in the following ways:
a. Type of construction materials (sign copy, supports, etc.);
b. Letter size and style of copy;
c. Method and design of sign support (wall mounting or monument base);
d. Configuration of sign area; and
e. Proportion of sign copy area to background.
3. Lighted signs, whether internally or externally illuminated, are permitted; provided, they are not harsh or overly bright. Can- type box signs with translucent backlit panels should not be used.
4. Signs with backlit or internally illuminated individual channel letters are strongly encouraged.
D. Freestanding Signs.
1. Freestanding signs are intended to provide identification for single-tenant buildings, multiple-tenant buildings, commercial offices and centers, and business and industrial parks. Signs for single-tenant buildings should include the street address of the business.
2. Signs for multiple -tenant buildings, commercial offices and centers, and business and industrial parks should display the range of business addresses for that development. The business address shall not be included in the sign area calculation.
3. Lighted signs, whether internally or externally illuminated, are permitted, provided they are not harsh or overly bright. Signs should consist of individual affixed to an opaque, matte finished background. The use of backlit (halo lighting) letters is strongly encouraged.
4. Freestanding signs should be placed perpendicular to approaching vehicular traffic.
5. Freestanding signs should be placed in landscaped planters of sufficient area, shape and design that will provide a compatible setting and ground definition to the signs.
6. Monument signs should be provided with a base, which measures from 12 to 18 inches in height, to accommodate the growth of landscaping around the sign base, without interrupting view of the sign face.
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Ontario Development Code Page G-1 (Rev. 07.19.2022)
Reference G: Landscape Design and Construction Guidelines Se
ctions:
G
.01.001: Purpose
G.01.002: Applicability
G.01.003: Landscape Design Guidelines
G.01.004: Prescriptive Compliance Option
W
orksheets:
G
.01-1: Water Efficient Landscape Worksheet
G.01-2: Landscape Architect—Certificate of Compliance
G.01-3: Recommendations for Vegetated Swales
G.01.001: Purpose
T
hese Landscape Design and Construction Guidelines are intended as a reference to assist design professionals, landscape contractors and homeowners in their understanding of the City' s goals and objectives for the preparation of landscape construction documentation plans, and the installation of landscape materials and elements.
F
urthermore, these guidelines are intended to compliment the mandatory landscape and irrigation regulations established by Development Code Division 6.5 (Landscaping), by providing examples of potential design solutions, and by providing design interpretations of the various mandatory regulations.
G.01.002: Applicability
A. T
he industrial design guidelines are general and may be interpreted with some flexibility in their application to specific projects. Variations may be considered for projects with special design characteristics during the City 's development review process, to encourage the highest level of design quality, while at the same time providing the flexibility necessary to encourage creativity on the part of project designers. Nonetheless, unless there are compelling reasons or practic al difficulties, these guidelines shall be observed.
B. D
eterminations of compliance with the Landscape Design and Construction Guidelines shall be made by the Approving Authority.
C. T
hese Landscape Design and Construction Guidelines are authorized by Development Code Section 6.05.045 (Landscape Design and Construction Guidelines), and are enforceable in the same manner, and to the same extent, as any other applicable requirement of the Ontario Development Code.
G.01.003: Landscape Design Guidelines
A. W
ater conservation is a high priority in the City of Ontario. Landscapes shall be designed to use water efficiently without waste to the lowest practical amount and comply with the State's 650
Reference G: Landscape Design and Construction Guidelines (Rev. 07.19.2022) Page G-2 Ontario Development Code
current Model Water Efficient Landscape Ordinance. Sources for low water plants are WUCOLS, "Water Use Classification of Landscape Species " https://wucols.ucdavis.edu/plant-search- database.
B. L
andscape areas sh ould be composed primarily of living plant materials spaced no greater than the mature diameter of each plant. Non-living ornamental features (boulders, gravel, dry stream beds, etc.) should comprise no more than 5 percent of the total landscape area and shall be a pervious material.
C. War
m season turf is recommended for recreational use projects (parks, sports fields, etc. where turf provides a playing surface) and residential projects with a maximum 50 percent of the landscape area. Planter areas irrigated by spray sh ould be no less than 8 FT in width. Low water u
se groundcovers should be used in traditional turf areas; parkways, etc.
D. D
esign landscape areas and irrigation systems for use with recycled water where required by the City . New multiple -family residential projects must use recycled water for homeowner association (HOA) maintained areas, such as parks, parkways, neighborhood edges, and common areas. Single-family residential projects must use p otable water with a backflow for all landscape areas, even if HOA maintained.
E. P
roperty irrigated with r ecycled water must provide a physical separation from areas irrigated with potable water, by means of a wall, fence, paving, or a center mow curb within the landscape area, located 4 FT from the area irrigated with recycled water. I rrigation lines and heads may be located no closer than 2 FT of each side of the mow curb.
F. C
oncrete mowstrips, minimum 6 inches wide by 6 inches high or 4 inches wide by 6 inches high, must be provided at turf areas located adjacent to landscape planter areas, and to provide separation between adjacent properties or maintenance responsibility areas. Redwood header boards are allowed only for use with individual single -family home s, and to define a lot line adjacent to undeveloped property.
G
. Design landscape areas so that utilities, such as backflow preventers, are screened by minimum 4-FT wide planter areas and massed with similar height shrubs (Note: Paint brass backflow preventers green (RAL 6009 Fir Green or equal) ). Furthermore, coordinate landscape plans with utility plans , so that transformers are: [i] setback at least 4 FT from pav ed area and 5 FT from roadways, [ii] screened with shrubs of similar height on 3 sides; and [iii] planted with a maximum 18-inch high groundcover at the front.
H. A
ccent trees (single or multi- trunk specimens) are required at all nonresidential corner s
tatements, including vehicular entries and the corners of major intersections. All accent trees should be minimum 36 -inch box. Palms sh ould have a minimum 17 -FT brown trunk height (BTH) , and a minimum 4-FT cubed rootball.
I. F
oundation planting adjacent to building s (hedgerows or shrub masses in a hierarch ical pattern) must be provided at nonresidential primary exterior building elevations, and at residential front yards, to soften the break between the horizontal ground plane and the vertical building plane.
J. P
lants at monument signs shall be made up of a hierarchy of ornamental shrubs or perennials.
K. L
andscape areas must have a minimum inside dimension of 5 FT to accommodate tree 651
Reference G: Landscape Design and Construction Guidelines Ontario Development Code Page I-3 (Rev. 05.02.202301.20.2026) growth, and must have a minimum inside dimension of 6 FT in if it contains a vegetated swale.
L. P
arking areas visible from public streets or adjacent parcels should be screened with landscaping having a height of at least 3 FT, or a combination of landscaping and maximum 3-FT high decorative walls.
M.
Landscape areas adjacent to parking areas should be planted to accommodate a 2 -FT overhang of vehicles, unless wheel stops are provided.
N. P
arking lots should be planted with canopy shade trees hav ing a minimum canopy diameter of 30 FT, provided at the minimum rate of one tree for each 5 parking spaces.
O
. Parking lots with double rows of parking
spaces are encouraged to provide a 4-FT to 5-
FT wide landscaped strip containing an
infiltration trench, where possible (see
Infiltration Trench Example, right).
P. P
arking lot landscaping shall maximize
broad canopy shade tree planting to reduce
heat gain on paving and buildings. Add large
planters, center planter strips or diamond
planters between parking rows for shade trees.
Q
. Planters adjacent to parking spaces
shall have a 12 -inch wide curb, providing a
step-out area for access to vehicles.
R. L
andscape areas should be bordered by 6-inch concrete curbs, except where openings into infiltration basins or swales are provided.
S. T
rash enclosures should have adjacent
planters with trees, shrubs, and vines to screen
(see Trash Enclosure Adjacent Planters
Example, right).
T. P
arkway areas within street rights-of-
way must be landscaped with living plant
material less than 18 inches in height ,
au
tomatically irrigated , and contain street
trees pursuant to the Master Street Tree Plan ,
spaced at 25 to 35 FT apart, and coordinated
with utility locations and setbacks.
U. U
ndeveloped areas within a project
site must be seeded with a wildflower or
ornamental grass mix , and automatically
irrigated to prevent soil erosion from rain and
strong winds. Projects that are adjacent to Southern California Edison (SCE) easement areas sha ll
coordinate with SCE to obtain a permit for non-irrigated hydroseeding within the easement.
V. P
rojects with landscape areas within Caltrans rights-of-way must enter into a cooperative I
nfiltration Trench Example
T
rash Enclosure Adjacent Planters Example
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Reference G: Landscape Design and Construction Guidelines (Rev. 07.19.2022) Page G-4 Ontario Development Code
agreement with Caltrans San Bernardino Division, for landscape installation and maintenance.
W. W
ireless telecommunications facilities must be screened with groupings (minimum 3) of approved live trees and shrubs, to blend the facility with adjacent tree or palm stands (California native trees and shrubs are preferred ). Tree size sh ould be minimum two-thirds the height of the facility, or as approved by the P lanning Director. Permanent irrigation and regular maintenance shall be provided for all landscaped areas.
X. A
dditional landscape requirements may be required for projects located within established specific plan areas.
Y. P
lant selection and irrigation design must be appropriate with the City's regional climate (Zone 18), classified as Mediterranean, and characterized by hot, dry summers and mild winters.
Winter temperatures average between 60 and 70 degrees , with occasional lows in the 20 's.
Summers average from 75 to 90 degrees , with highs exceeding 100 degrees. Average yearly rainfall is approximately 16 inches. Winds develop from the southwest , averaging 6 mph. Hot, dry Santa Ana winds occur between October to March, from the northeast, at 30 mph, with gusts at 60 mph or more. Air quality is considered poor due to frequent temperature inversions trapping pollutants below the inversion.
G.01.004: Prescriptive Compliance Option
A. T
his Section contains prescriptive requirements which may be used as a compliance option to the State Model Water Efficient Landscape Ordinance (CCR Title 23, Division 2, Chapter
2.7).
B. C
ompliance with the following items is mandatory and must be documented on landscape plan and irrigation plans in order to use the Prescriptive Compliance Option:
1. S
ubmit Landscape and Irrigation Construction Documentation Plans (pursuant to Development Code Section 6.05.015.B.1, Landscape and Irrigation Construction Documentation Plans Required), which includes the following elements:
a. D
ate;
b. Pr
oject applicant;
c. Pr
oject address (if available, parcel and/or lot number(s)); d. To
tal landscape area (square feet), including a breakdown of turf and plant material;
e. Pro
ject type (e.g., new, rehabilitated, public, private, cemetery , h
omeowner-installed);
f. Wa
ter supply type (e.g., potable, recycled, well) and identify the local water purveyor;
g. Co
ntact information for the project applicant and property owner; and h. Applic
ant signature and date , with the following statement : " I agree to 653
Reference G: Landscape Design and Construction Guidelines
Ontario Development Code Page I-5 (Rev. 05.02.202301.20.2026) comply with the requirements of the prescriptive compliance option to the Model Water Efficient Landscape Ordinance".
2. Incorporate compost at a rate of at least 4 CY per 1,000 SF, to a depth of 6 inches into landscape area (unless contra-indicated by a soil test);
3. Plant material shall comply with all of the following;
a. For residential areas, install climate adapted plants that require occasional, little or no summer water (average WUCOLS plant factor 0.3) for 75 percent of the plant area excluding edibles and areas using recycled water; For non -residential areas, install climate adapted plants that require occasional, little or no summer water (average WUCOLS plant factor
0.3) for 100 percent of the plant area excluding edibles and areas using recycled water;
b. A minimum 3- inch layer of mulch shall be applied on all exposed soil surfaces of planting areas except in turf areas, creeping or rooting groundcovers, or direct seeding applications where mulch is contraindicated.
4. Turf shall comply with all of the following:
a. Turf shall not exceed 25 percent of the landscape area within residential zoning districts, and there shall be no turf allowed within non-residential zoning districts;
b. Turf shall not be planted on sloped areas which exceed a slope of one foot vertical elevation change for every 4 FT of horizontal length;
c. Turf is prohibited in parkways less than 10 feet wide, unless the parkway is adjacent to an off-street parking area and is used to enter and exit vehicles. Any turf in parkways must be irrigated by sub -surface irrigation or by other technology that creates no ov erspray or runoff.
5. Irrigation systems shall comply with the following:
a. Automatic irrigation controllers are required and must use evapotranspiration or soil moisture sensor data.
b. Irrigation controllers shall be of a type which does not lose programming date in the event the primary power source is interrupted.
c. Pressure regulators shall be installed on the irrigation system to ensure the dynamic pressure of the system is within the manufacturers recommended pressure range.
d. Manual shut-off valves (such as a gate valve, ball valve, or butterfly valve) shall be installed as close as possible to the point of connection of the water supply.
e. All irrigation emission devices must meet the requirements set in the ANSI standard, ASABE/ICC 802-2014. "Landscape Irrigation Sprinkler and Emitter Standard, " All sprinkler heads installed in the landscape must document a distribution uniformity low quarter of 0.65 or higher using the protocol defined in ASABE/ICC 802-2014.
C. At the time of final inspection, the permit applicant must provide the owner of the property with a certificate of completion, certificate of installation, irrigation schedule , and a 654
Reference G: Landscape Design and Construction Guidelines (Rev. 07.19.2022) Page G-6 Ontario Development Code
schedule of landscape and irrigation maintenance.
655
Reference G: Landscape Design and Construction Guidelines
Ontario Development Code Page I-7 (Rev. 05.02.202301.20.2026) City of Ontario
Landscape Planning Division
G.01-1: Water Efficient Landscape Worksheet
Reference Evapotranspiration (ETo):
ETAF Calculations:
Regular Landscape Areas
All Landscape Areas
Hydrozone # /
Planting
Description
Plant
Factor
(PF)
Irrigation
Method b
Irrigation
Efficiency
(IE) c
ETAF
(PF/IE)
Landscape
Area (SF) ETAF x Area
Estimated Total
Water Use
(ETWU) d
Regular Landscape Areas
Totals (A) (B)
Special Landscape Areas
1 1
1 Totals (C) (D)
ETWU Total
Maximum Allowed Water Allowance (MAWA) e
Legend:
a Hydrozone #/Planting Description
e.g.: [1] front lawn ; [ 2] low water use
plantings; and [3] m edium water use
planting
b Irrigation Method
overhead spray or drip
c Irrigation Efficiency
0.75 for spray head
0.81 for drip
d ETWU (Annual Gallons Required)
= Eto x 0.62 x ETAF x Area
where 0.62 is a conversion factor that
converts acre-inches per acre per year
to gallons per square foot per year
e MAWA (Annual Gallons Allowed) = (Eto) ( 0.62) [ (ETAF x LA) + ((1-ETAF) x SLA)] where 0.62 is a conversion factor that converts acre-inches per acre per year to gallons per square foot per year, LA is the total landscape area in square feet, SLA is the total special landscape area in square feet, and ETAF is .55 for residential areas and 0.45 for non-residential areas.
Total ETAF x Area (B)
Total Area (A)
Average ETAF B ÷ A
Total ETAF x Area (B+D)
Average ETAF for Regular Landscape
Areas must be 0.55 or below for
residential areas, and 0.45 or below
for non-residential areas.
656
Reference G: Landscape Design and Construction Guidelines (Rev. 07.19.2022) Page G-8 Ontario Development Code
City of Ontario
Landscape Planning Division
G.01-2: Landscape Architect—Certificate of Compliance
Senior Landscape Planner: 909/395-2237
Associate Landscape Planner: 909/395-2615
Project Name:
Project Address
Permit No.:
The undersigned Landscape Architect certifies that the complete landscape and irrigation installation is in compliance to approved plans. Any deviation to approved plans shall require a re-submittal to the Landscape Planning Division for review and approval prior to installation.
Landscape Architect's Inspection Date Initial
1) Hardscape construction complies with approved plan:
2) Irrigation installation verified: trench, pipe size, pressure test, coverage test:
3) Irrigation controller chart with landscape maintenance schedule:
4) Soil report, compaction test and amendments verified with receipt:
5) Verification of plant material, quantity, and quality:
6) Verified ET sensor and controller installed and programming set up:
7) Water Budget: Landscape:
SF: __________ MAWA: __________ Gallon/year ETWU = __________ Gallon/year
After the receipt of this Certification, the Landscape Planner will conduct the final landscape Inspection. The Owner's Representative and Landscape Contractor shall be present.
Landscape Architect (Print) Company Name
Landscape Architect (Signature) Address
License Number Phone Number
657
Reference G: Landscape Design and Construction Guidelines
Ontario Development Code Page I-9 (Rev. 05.02.202301.20.2026) City of Ontario
Landscape Planning Division
G.01-3: Recommendations for Vegetated Swales
Hydroseed mix for irrigated and partially irrigated sites with some standing water :
SEED LBS/ACRE
ACHILLEA MILLEFOLIUM 1.0
ESCHSCHOLZIA CAESPITOSA 1.0
JUNCUS BUFONIUS 1.0
LEYMUS TRITICOIDES RIO 6.0
DESCHAMPSIA CESPITOSA 4.0
FESTUCA RUBRA 'MOLATE' 10.0
HORDEUM BRACHYANTHERUM 6.0
MUHLENBERGIA RIGENS 1.0
MUHLENBERGIA MICROSPERMA 3.0
HORDEUM DEPRESSUM 3.0
Hydroseeding slurry component for slopes from 3:1 to 2:1:
Product Application Rate
Wood Fiber Mulch 2000 lbs/acre
Binder/Tackifier 200 lbs/acre
Product Application Rate
Organic fertilizer 800 lbs/acre
Mycorrhizal inoculum 60 lbs/acre
Add to slope rolled erosion control netting product (RECP Netting) 20.6 ounce weight per yd2, for landscape areas directly receiving pavement run off.
Shrubs from 1- 5 gallon containers should be approximately planted on the swale side slopes:
FESTUCA IDAHOENSIS — Blue Fescue, 1 FT x 1 FT
MUHLENBERGIA RIGENS — Deer Grass, 4 FT x 4 FT
FESTUCA MAIREI — Marie's Fescue, 2 FT x 2 FT
CAREX PANSA — California meadow sedge, 1 FT x 1 FT
LEYMUS CONDENSATUS — Canyon Prince, 4 FT x 3 FT
LEYMUS TRITICOIDES — Creeping Wild Rye, 2 FT x 2 FT
Trees from containers 5 to 15 gallons should be appropriately planted on the top of side slopes:
QUERCUS AGRIFOLIA — COAST LIVE OAK, space 35 FT apart.
PLATANUS ACERIFOLIA — LONDON PLANE TREE, space 35 FT apart.
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Soils with low infiltration rates less than one inch per hour shall:
E
xcavate an additional 18 to 36 inches deep and add engineered soil mix in the swale bottom.
Provide soil testing to determine additional methods to increase infiltration .
Su
itable Bioswale Soil:
G
eneral. Topsoil shall be free of roots, clods, or stones larger than 1 -inch in the greatest dimension, pockets of coarse sand, noxious weeds, sticks, lumber, brush, and other litter. It shall not be infested with nematodes or other undesirable disease -causing organisms such as insects and plant pathogens or any hazardous materials.
1. T
opsoil shall be friable and have sufficient structure in order to give good tilth and aeration to the soil.
2. G
radation limits-soil shall be a sandy loam. Gravel over ¼inch in diameter shall be less than 20 percent by weight.
3. P
ermeability Rate shall be not less than one inch per hour, nor more than 20 inches per hour.
S
oil Organic Matter Content . The desirable range is 3 percent to 5 percent. Sufficient soil organic matter shall be present to impart good physical soil properties but not be excessive to cause toxicity or cause excessive reduction in the volume of soil due to decomposition of organic matter.
659
Department: Fire Department
Prepared By: Kemi Makinde
Staff Member Presenting: Mike Gerken, Fire
Chief
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 4
SUBJECT:
AN UPDATED LOAN AGREEMENT BETWEEN THE CITY OF ONTARIO AND CONFIRE
JOINT POWERS AUTHORITY FOR INITIAL CAPITAL FUNDING TO ESTABLISH
AMBULANCE SERVICING
CITY OF ONTARIO
Agenda Report
February 17, 2026
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager or his designee to execute all documents related to the Loan Agreement between the City of Ontario and CONFIRE Joint Powers Authority in the amount of $20,000,000.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT:
The City will issue a loan to CONFIRE in an amount not-to-exceed $20,000,000 with an annual interest rate equal to the Local Agency Investment Fund (LAIF) daily effective yield rate on the date of the first advance. The loan will be funded from available City funds, excluding the General Fund. Quarterly repayments will commence after the first advance, and the loan will be repaid in full within two years.
BACKGROUND & ANALYSIS:
In 2020, the Ontario Fire Department began experiencing significant ambulance delays and challenges with the County's private ambulance provider's ability to meet their contractual response time obligations. Neighboring cities in the County experienced similar delays. This was exacerbated by paramedic staffing shortages, COVID- 19 pandemic, and ambulance patient offload delays at the local hospitals. The issue caused residents to have to wait for ambulance transport, in some cases up to an hour.
In 2022, in an effort to mitigate delays, the City of Ontario entered into an Agreement with the Emergency Medical Services Division of CONFIRE (Consolidated Fire Agencies), a joint powers authority, to share in the responsibility of collaborative development and implementation of a regionally shared emergency medical services delivery system that provides Advanced Life Support and Basic Life Support Ground Ambulance Services. CONFIRE together with its partner, Priority Ambulance, submitted a proposal to the San Bernardino County Board of Supervisors in response to Request for Proposals (RFP) Number ICEMA23- ICEMA- 4811 for emergency ambulance and 660
interfacility transport services. On December 5, 2023, the Board of Supervisors awarded the RFP to CONFIRE to provide Advanced Life Support and Basic Life Support Ground Ambulance Services to all of San Bernardino County.
On December 19, 2023, the City Council approved a loan Agreement between the City and CONFIRE for initial capital funding to establish ambulance servicing throughout San Bernardino County. Since then, AMR filed an injunction in September 2024 which ceased all activities pending further legal review and the loan was never drawn down. Since that time, the loan has expired and is now being brought back before Council for approval in light of the program’s anticipated forward progress, which is expected in early 2026.
Under the updated terms for the CONFIRE loan, borrowing is structured through individual advances ranging from a minimum of $1 million to a maximum of $5 million per request. The total amount borrowed across all advances is capped at $20 million. Regarding the repayment schedule, the entire loan—including every subsequent draw—reaches its final maturity exactly two years from the date the first advance is paid. This means that while later advances may be requested, they do not extend the timeline and must still be fully repaid by that same original two-year deadline.
The repayment of the loan for the Ambulance Servicing program will be as follows: For each advance, CONFIRE will pay quarterly principal and interest payments. Payment due dates are January 1, April 1, July 1 and October 1. The first payment due for the first advance shall be the next succeeding payment date. For example, if the first advance is April 1, 2026, then the first payment shall be made on July 1, 2026. A payment schedule will be issued after the first advance. For each subsequent advance, the payment schedule will be amended and all the amounts due will be paid on each quarterly payment date. The loan shall be paid in full within two years from the first advance.
Staff recommends the City of Ontario enter into this updated Loan Agreement to assist in the startup costs of the EMS Division of CONFIRE. The funds are needed for administrative support, to commence operations of services, and provide those services until billing and collections relating to such emergency services can fully fund the operation. Based on past billing practices, revenues are expected to come in approximately three months after the start of service. 661
46700.02320\41794755.6
1 CITY OF ONTARIO
CONFIRE EMS PROGRAM
LOAN AGREEMENT
This CITY OF ONTARIO CONFIRE EMS PROGRAM LOAN AGREEMENT (the “Agreement”) is made as of _______ 20__ , by and between CONSOLIDATED FIRE AGENCIES (“Borrower”), a joint powers agency, acting on behalf of its CONFIRE EMS, a division of the Borrower (“EMS”) and the CITY OF ONTARIO , a California municipal corporation (“Lender”).
R E C I T A L S
A. Borrower is a joint powers agency, was created to provide services relating to the operation of a regional public safety communication system and cooperative program of fire protection, rescue and emergency medical services system.
B. EMS is a subsidiary division of Borrower, which provides emergency medical services to Borrower’s member agencies (the “Member Agencies”).
C. Borrower has requested that the Lender extend credit to Borrower in the form of this agreement with a maximum credit limit of Twen ty Million Dollars ($20,000,000) for the purpose of providing emergency medical services and ambulance transportation services, and to fund the administrative support to commence operations, billings and collection services (the “Program”).
D. The Lender has agreed to extend credit to Borrower, subject to and in accordance with the terms and conditions of this Agreement and the other “Loan Documents” as that term is defined below.
NOW, THEREFORE, for good and valuable consideration the parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 Definitions. Capitalized terms in this Agreement that are not defined when first used shall have the meanings set forth below:
(a) Advances. The term “Advances” shall mean all funds advanced to the Borrower under the terms of this Agreement.
(b) Administrative Statements . Borrower’s statements regarding administration of billing to insurance providers and federal and State agency reimbursement applications related to the Program. (c) Agreement. The term “Agreement” shall mean this Agreement, any schedules hereto, any promissory notes, and assignments required hereunder (whether executed concurrently with or prior or subsequent to the date hereof), and any concurrent or subsequent amendments, 662
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Loan Agreement
2 modifications, supplements, chattel paper , extensions, or schedules to any of the foregoing.
(d) Authorized Officer . The term “Authorized Officer” shall mean Executive Director of the Borrower.
(e) Borrower’s Books. The term “Borrower’s Books” shall mean: (a) all of Borrower’s books and records including ledgers, records indicating, summarizing, or evidencing Borrower’ s assets or liabilities related to the Program ; (b) all information relating to Borrower’s business operations or financial condition related to the Program ; and (c) all computer programs, disk or tape files, printouts, runs, or other computer prepared information, and the equipment containing such information related to the Program.
(f) Business Day. The term “Business Day” shall mean any day which is not a Saturday, Sunday, or other day on whic h banks in the State of California are authorized or required to close.
(g) Event of Default. The term “Event of Default” shall mean the occurrence of an event described in Section 6.1 below.
(h) Financial Statement(s). The term “Financial Statement(s)” shall mean all income statements, balance sheets, statements of retained earnings or other related statements which reflect the financial worth of Borrower related to the Program.
(i) Loan. The term “Loan” shall mean the aggregate of all Advances made by Lender to Borrower hereunder , and represented in a Payment Schedule.
(j) Loan Documents . The term “Loan Documents” shall mean, collectively, this Agreement, the Payment Schedule , any other obligation or schedule executed by Borrower to the order of Lender, and any other document, instrument and agreement executed by Borrower in connection with this Agreement.
(k) Maximum Credit Limit . The term “Maximum Credit Limit” has the meaning provided in Section 2.1 below.
(l) Members of the Borrower. The term “Members of the Borrower” shall mean the “Parties” as described in the Joint Powers Agreement (Third Amended and Restated) and dated March 23, 2021, by and among the Members.
(m) Obligations. The term “Obligations” shall mean all Advances together with interest thereon, Lender’s expenses, and all other amounts payable 663
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Loan Agreement
3 by Borrower under the Loan Documents, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including any debt, liability, or obli gation owing from Borrower to others which Lender may have obtained by assignment or otherwise, and further including all interest n ot paid when due and all Lender’s expenses which Borrower is required to pay or reimburse by the Loan Documents, by law or otherwise.
(n) Payment Date. The term “Payment Date” shall mean January 1, April 1, July 1 and October 1 of each calendar year, and shall be in the form of Exhibit A hereto, as such may be amended or modified. (o) Payment Schedule . The term “Payment Schedule” shall mean a schedule of principal and interest payments due hereunder, as modified from time to time representing Advances made to Borrower. (p) Revenues. The term “Revenues” means all billings for transport services and GMS services, which includes State an d Federal reimbursement or supplemental reimbursement funds.
1.2 Construction. Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, to the singular include the plural, to the part include the whole, and “including” is not limiting, and “or” has the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement.
Section, subsection, clause, and exhibit references are to this Agreement unless otherwise specified.
1.3 Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles (“GAAP”) as in effect from time to time. When used herein, the term “financial statements” shall include the notes and schedules thereto.
2. ADVANCES AND TERMS OF PAYMENT.
2.1 Extension of Credit. Subject to the full satisfaction of each and all of the conditions set forth in this Article II, and subject to the all other terms and conditions of this Agreement, Lender shall, upon the request of Borrower made from time to time but no later than two (2) years from the date of the first draw of funds under this Agreement, and so long as no Event of Default has occurred and is continuing, or so long as this Agreement has not been terminated, and subject to the full satisfaction of each and all of the conditions set fo rth in this Agreement , make Advances to Borrower in an aggregate amount not to exceed the sum of the following (the “Maximum Credit Limit”): Twenty Million Dollars ($2 0,000,000.00), provided through the Lender’s unrestricted funds other than the General Fund of the Lender.
2.2 Request for Advance. Borrower may take Advances in a minimum amount of One Million Dollars ($1,000,000) and a maximum amount of Five Million Dollars ($5,000,000). Total draws cannot exceed Twenty Million ($20,000,000) in the aggregate . A dvances, as well as 664
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Loan Agreement
4 directions for payment from Borrower’s deposit accounts maintained with Lender, must be requested in writing on behalf of Borrower by any Authorized Officer. Borrower agrees to be liable for all sums advanced in accordance with Borrower ’s or Borrower’s authorized representative’s instructions. The unpaid Advances owing hereunder, at any time, will be evidenced by a separate Payment Schedule to be added to this Agreement. All requests for Advances shall be received by Lender ten (10) Business Days prior to the proposed date the requested Advance is to be made. Each request made to Lender for an Advance shall contain the following: (a) the aggregate principal amount of the Advance; and (b) satisfaction of conditions of Section 2.13 hereof.
2.3 Authorization to Make Advances. Lender is hereby authorized to make Advances, solely from its unrestricted funds, other than the Lender’s General Fund, based on a written request to Lender made by anyone purporting to be an Authorized Officer. Borrowe r hereby holds Lender harmless against any loss, claim, liability, cause of action, and damages arising out of Lender’s reliance on such request in making an Advance hereunder.
2.4 Maturity Dates. The first Advance shall have two (2) years from the date of th e effective Advance payment date (the “Closing Date”) to repay the loan (the “Maturity Date”). Each subsequent Advance shall be repaid no later than the Maturity Date stated above. For avoidance of doubt, the final Maturity Date for all amounts drawn her eunder shall be the date which is two (2) years from the first Closing Date.
2.5 Security. The Loan and all other payment obligations under this Agreement and the Loan Documents will be payable from and secured by the Revenues of the Borrower.
2.6 Repayment of Advance. For each Advance, Borrower will pay scheduled principal and interest as follows:
(a) the first payment due for the first Advance shall be the next succeeding Payment Date of such Advance (for example, if the first draw is April 1, 2026, then the first payment shall be made on July 1, 2026) and such repayment shall be reflected in a Payment Schedule; and (b) thereafter, on each Payment Date;
(c) for each subsequent Advance, the Payment Schedule shall be amended and the all amounts due thereunder shall be paid on each Payment Date; (d) all or any portion of the Loan may be prepaid on any Business Day without premium or penalty at the option of the Authority, by presentment of the unpaid principal portion together with interest accrued thereon to the da te set for prepayment upon delivery to the Lender of notice of intent to prepay the Loan no less than 10 days prior to the date of such prepayment.
The entire Loan shall be paid in full by the Maturity Date. 665
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Loan Agreement
5 2.7 Interest. Interest rate on all amounts due here under shall be determined by using the Local Agency Investment Fund (LAIF) daily effective yield rate, on the first Closing Date.
2.8 Default Interest Rate. The interest rate after the occurrence of any Event of Default shall be calculated at the rate of 8.00% (the “Default Rate”) on a monthly basis.
2.9 Insurance.
(a) Coverage. For the duration of this Agreement, Borrower shall maintain insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Program. Coverage shall be at least as broad as:
(1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertis ing injury with limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (2) Automobile Liability: ISO Form Number CA 00 01
covering any auto (Code 1), or if Borrower has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury an d property damage.
(3) Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(4) Fidelity & Crime: Fidelity & Crime coverage with a limit no less than $1,000,000 including coverage for employee dishonesty and theft, disappearance and destruction of money and securities.
If the Borrower maintains broader coverage and/or higher limits than the minimums shown above, the Lender requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Borrower. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Lender. (b) Policies. The insurance policies shall contain, or be endorsed to contain, the following provisions:
(1) Additional Insured Status . The Lender, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Borrower including materials, parts, or equipment furnished in connection with such work or operations.
General liability coverage can be provided in the form of an endorse ment to the Borrower’s 666
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Loan Agreement
6 insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used). (2) Primary Coverage. For any claims related t o this contract, the Borrower’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04 13 as respects the Lender, its officers, officials, employees, and volunteers. Any insurance or self -insurance maintained by t he Lender, its officers, officials, employees, or volunteers shall be excess of the Borrower’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies. (3) Umbrella or Excess Policy . The Borrower may use
Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non -contributory, additional insured, Self -Insured Retentions ( “SIRs”), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or b roader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insura nce policies maintained by the additional insureds, whether primary or excess, and which also apply to a loss covered here under, shall be called upon to contribute to a loss until the Borrower’s primary and excess liability policies are exhausted.
(4) Notice of Cancellation . Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the Lender. (5) Waiver of Subrogation. Borrower hereby grants to Lender a waiver of any right to subrogation which any insurer of said Borrower may acquire against the Lender by virtue of the payment of any loss under such insurance. Borrower agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Lender has received a waiver of subrogation endorsement from the insurer.
(6) Self-Insured Retentions. Self -insured retentions must be declared to and approved by the Lender. The Lender may require the Borrower to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses wit hin the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or Lender. The CGL and any policies, including Excess liability policies, may not be subject to a SIR or deductible that exceeds $25,000 unless approved in writing by Lender. Any and all deductibles and SIRs shall be the sole responsibility of Borrower or subcontractor who procured such insura nce and shall not apply to the indemnified additional insure d parties. The Lender may deduct from any amounts otherwise due Borrower to fund the SIR/deductible. Policies shall not contain any SIR provision that limits the satisfaction of the SIR to the n amed insured.
The policy must also provide that Defense costs, including the allocated loss adjustment expenses, will satisfy the SIR or deductible. The Lender reserves the right to obtain a copy of any policies and endorsements for verification.
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7 (7) Acceptability of Insurers . Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the Lender.
(8) Verification of Coverage . Borrower shall furnish the Lender with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations and Endorsements pages are to be received and approved by the Lender before the Program commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Borrower’s obligation to provide them. The Lender reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. The Lender reserves the right to modify these requirements, including limits, base d on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
2.10 Accounting System. Borrower at all times hereafter shall maintain a standard and modern system of accounting in accordance with GAAP, with ledger and account cards or computer tapes, disks, printouts, and records pertaining to the Program which contain information as may from time to time be requested by Lender.
2.11 Records. Borrower shall keep full and accurate accounts and records of its operations according to GAAP.
2.12 Audit. Borrower shall permit Lender, its employees or agents upon request to inspect and test Borrower’s books and records for the purpose of verifying the accuracy of all information required under the terms of this Agreement or submitted pursuant t o this Agreement. Pursuant to this Section, Borrower shall grant Lender complete access (including computer access) to all records in whatever form, including accounts, bank statements, delinquency reports, collection reports and litigation reports, whether in hard form or on software.
2.13 Conditions to Each Advance. Lender shall not be obligated to disburse all or any portion of the first Advance and each subsequent Advance, unless and until Borrower has fully satisfied each and all of the following conditions:
(a) The outstanding principal balance owed on the Loan as evidenced by the Payment Schedule does not at any time exceed the Maximum Credit Limit;
(b) Borrower shall have executed and delivered to Lender an original counterpart of this Agreement;
(c) Borrower shall have executed and delivered to Lender a revised Payment Schedule for all Advances made hereunder;
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8 (d) A duly executed resolution to borrow authorizing the loan transactions and authorizing specific officers to act on behalf of the Borrower in connection with this Agreement shall be delivered to Lender; and (e) Borrower has delivered all approvals and incumbency certificates of officers of the Borrower executing any Loan Documents;
(f) Borrower’s Counsel has delivered legal opinions addressed to Lender in form and substance satisfactory to the Lender and Lender’s Counsel; (g) Lender shall have received any and all additional documents, instruments and certificates required pursuant to this Agreement, or otherwise deemed necessary and requested by Lender.
(h) Borrower has delivered a certificate to Lender evidencing that (i) no Event of Default has occurred , (ii) all representations, warranties, and covenants are true and correct and (iii ) no material adverse change has occurred with respect to the Borrower, since the date of the most recent audited financial statements delivered to the Lender.
(i) Borrower has paid all closing fees and expenses.
3. CONTINUING REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender as follows, each such representation and warranty to continue so long as any Obligations remain unpaid:
3.1 Organization; Authority as to Loan Documents. The Borrower is in good standing under the laws of the State, h as full legal right, power and authority to e nter into the Loan Documents, and to carry out and consummate all transactions con templated by the Loan Documents, and by proper action of its legislative body has duly authorized the execution, delivery and per formance of the Loan Documents. The person(s) of the Borrower executing the Loan Documents to which the Borrower is a party are fully authorized to execu te the same. The Loan Documents have been duly authorized, executed and delivered by the Borrower.
3.2 Proceedings; Enforceability . Assuming due execution and delivery by the other parties thereto, the Loan Documents to which the Borrower is a party will constitute the legal, valid and binding agreements of the Borrower enforceable against the Borrower in accordance with their terms; except in each case as enforcement may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights against public entities in the State of California, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy.
3.3 No Conflicts . The execution and delivery of the Loan Documents , the consummation of the transactions herein and therein contemplated and the fulfillment o f or compliance with the terms and conditions hereof and thereof, will not, in any material respect, conflict with or constitute a violation or breach of or default (with due notice or the passage of time 669
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9 or both) under the Joint Powers Agreement for the B orrower entered into on September 21, 1990, as subsequently amended (“JPA Agreement”), its bylaws or to the best knowledge of the Borrower, any applicable law or administrative rule or regulation, or any applicable court or administrative decree or order, to which Borrower is subject, or any mortgage, deed of trust, loan agreement, lease, contract or other agreement or instrument to which the Borrower is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, violation, breach, default, lien, charge or encumbrance might have consequences that would materially and adversely aff ect the consummation of the transactions contemplated by the Loan Documents or the financial condition, assets, properties or operations of the Borrower.
3.4 Litigation; Adverse Facts. Except as disclosed to Lender in writing prior to the date hereof, there is no legal action, nor is there a basis known to Borrower for any legal action, before or by any court or federal, state, municipal or other governmental authority, pending, or to the knowledge of the Borrower, after reasonable investigation, threatened, ag ainst or affecting the Borrower, or its assets, properties or operations which, if determined adversely to the Borrower or its interests, would have a material adverse effect upon the consummation of the transactions contemplated by, or the validity of, th e Loan Documents, upon the ability of Borrower to perform its obligations under the Loan Documents, or upon the financial condition, assets, properties or operations of the Borrower. Borrower is not in default (and no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a default) with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental authority, which default mi ght have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Loan Documents, the ability of Borrower to perform its obligations under the Loan Documents, or the financial condition, assets, properties or operations of the Borrower. Borrower is not (a) in violation of any applicable law, which violation materially and adversely affects or may materially and adversely affect the business, operations, assets condition (financial or otherwise) or pros pects of Borrower; (b) subject to, or in default with respect to, any other legal requirements that would have a material adverse effect on the business, operations, assets, condition (financial or otherwise) or prospects of Borrower; or (c) in default with respect to any agreement to which Borrower is a party or by which it is bound, which default would have a material adverse effect on the business, operations, assets, condition (financial or otherwise) or prospects of Borrower; and (d) there is no legal action pending or, to the knowledge of Borrower, threatened against or affecting Borrower questioning the validity or the enforceability of this Agreement.
3.5 Agreements; Consents; Approvals . Except as contemplated by the Loan Documents, the Borrower is not a party to any agreement or instrument or subject to any restriction that would materially adversely affect the Borrower. The Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any other agreement or instrument to which it is a party or by which it is bound.
No consent or approval of any trustee or holder of any indebtedness of the Borrower, and to the best knowledge of the Borrower and only with respect to the Borrower, no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except 670
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10 no representation is made with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, except as have been obtained or made and as are in full force and effect.
3.6 No Bankruptcy Filing . The Borrower is not contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency law or the liquida tion of all or a major portion of its property, and the Borrower has no knowledge of any person contemplating the filing of any such petition against it. As of the Closing Date, the Borrower has the ability to pay its debts as they become due.
3.7 Full and Accurate Disclosure. No statement of fact made by the Borrower in any Loan Document contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained therein in light of the circumstances in which they were made, not misleading. There is no material fact or circumstance presently known to the Borrower that has not been disclosed to the Lender which materially and adversely affects the Program or the business, operations or financial condition or business prospects of the Borrower or the Borrower’s ability to meet its obligations under this Agreement in a timely manner.
3.8 Compliance. The Borrower will comply, to the extent required, in all material respects with all applicable legal requirements. The Borrower is not in default or violation of any order, writ, injunction, decree or demand of any governmental authority, the violation of which would materially adversely affect the financial condition or business prospects or the business of the Borrower.
3.9 Contracts. All service, maintenance or repair contracts affecting the Projects have been entered into at arm’s length (except for such contracts between the Borrower and the Lender) in the ordinary course of the Borrower’s business and provide for the payment of fees in amounts and upon terms comparable to existing market rates.
3.10 Financial Information. All financial data, including any statements of cash flow and income and operating expense, that have been delivered to the Lender in respect of the Program by or on behalf of the Borrower, to the be st knowledge of the Borrower, (a ) are accurate and complete in all material respects, (b) accurately represent the financial condition of the Program as of th e date of such reports, and (c ) to the extent prepared by an independent certified public accounting firm, have been prepared in accordance with GAAP consistently applied throughout the periods covered, except as disclosed therein. Other than pursuant to or permitted by the Loan Documents or the Borrower organ izational documents, the Borrower has no contingent liabilities, unusual forward or long -term commitments or unrealized or anticipated losses from any unfavorable commitments. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of the Borrower from that set forth in said financial statements.
3.11 Federal Reserve Regulations. No part of the proceeds of the Borrower Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose 671
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11 that would be inconsistent with such Regulation U or any other regulation of such Board of Governors, or for any purpose prohibited by law or any Loan Document.
3.12 Not a Foreign Person. The Borrower is not a “foreign person” within the meaning of §1445(0(3) of the Code.
3.13 Enforceability. The Loan Documents are not subject to, and the Borrower has not asserted, any right of rescission, set-off, counterclaim or defense, including the defense of usury.
3.14 Insurance. The Borrower has obtained the insurance required by Section 2.9 hereof and has delivered to the Lender copies of insurance policies or certificates of insurance reflecting the insurance coverages, amounts and other requirements set forth in this Agreement.
3.15 State Law Requirements. The Borrower hereby represents, covenants and agrees to comply with the provisions of all applicable state laws relating to the Loan Documents.
3.16 Fraudulent Transfer. The Borrower has not accepted the Loan or entered into any Loan Document with the actual intent to hinder, delay or defraud any creditor , and the Borrower has received reasonably equivalent value in exchange for its obligations under the Loan Documents.
The Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of the Borrower).
3.17 Filing of Taxes . The Borrower has filed (or has obtained effective extensions for filing) all federal, state and local tax returns required to be filed, if any, and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments, if any, payable by the Borrower.
3.18 Approval of the Loan Documents. By its execution and delivery of this Agreement, the Borrower approves the form and substance of the Loan Documents, and agrees to carry out the responsibilities and duties specified in the Loan Documents to be carried out by the Borrower. The Borrower acknowledges that (a) it understands the nature and structure of the Program, (b) it is familiar with the provisions of all of the Loan Documents and other documents and instruments relating to the financing, and (c ) it has not relied on the Lender f or any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by the Loan Documents or otherwise relied on the Lender in any manner.
3.19 Other Documents. Each of the representations and warranties of Borrower contained in any of the other Loan Documents is true and correct in all material respects (or, in the case of representations or warranties contained in any of the other Loan Documents that speak as of a particular date, were true and correct in all material respects as of such date). All of such representations and warranties are incorporated herein for the benefit of Lender.
3.20 Survival of Representations and Covenants . All of the re presentations and warranties in the Loan Documents (i) shall survive for so long as any portion of the Obligations remains due and owing and (ii) shall be deemed to have been relied upon by the Lender 672
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12 notwithstanding any investigation heretofore or hereafter made by the Lender or on its or their behalf.
3.21 Reliance by Lender; Cumulative. Each warranty, representation, and agreement contained in this Agreement shall be automatically deemed repeated with each Advance and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The warranties, representations, and agreements set forth in this Agreement shall be cumulative and in addition to any and all other warranties, representations, and agreements which Borrower shall now or hereafter give, or cause to be given, to Lender.
3.22 No Advisory or Fiduciary Role. The Borrower acknowledges and agrees that:
(a) the Lender has not assumed any advisory or fiduciary responsibility to the Borrower with respect to the transacti on contemplated hereby and the discussions, undertakings and procedures leading thereto; (b) the only obligations the Lender has to the Borrower is with respect to this Agreement and the Loan Documents; and
(c) the Borrower has consulted its own legal, accounting, tax, financial and other advisors, as applicable, to the extent it has deemed appropriate.
4. AFFIRMATIVE COVENANTS
During the term of this Agreement, the Borrower hereby covenants and agrees with the Lender that:
4.1 Existence. The Borrower shall (i) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its exi stence and its material rights, (ii) continue to engage in the busin ess presently conducted by it, and (iii ) qualify to do business and remain in good standing under the laws of the State.
4.2 Litigation. The Borrower shall give prompt written notice to the Lender of any litigation, governmental proceedings or claims or investigations regarding an alleged actual violation of a state or federal law pending or, to the Borrower’s knowledge, threatened against the Borrower which might materially adversely affect the Borrower’s condition (financial or otherwise) or business.
4.3 Performance of Other Agreements. The Borrower shall observe and perform in all material respects each and every term to be observed or perforated by it pursuant to the terms of any agreement or instrument affecting or pertaining to the Program.
4.4 Notices. The Borrower shall promptly ad vise the Lender in writing of (a ) any material adverse changes in the Borrower’s financial condition, assets, or properties or operations, (b) any fact or circumstance affecting the Borrower or the Program that materially and adversely affects the Borrower’s ability to meet its obligations hereunder or under any of the othe r Loan Document to which it is a party in a timely manner, or (c) the occurrence of any Event of Default of which the Borrower has knowledge.
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13 4.5 Lender’s Fees. The Borrower covenants to pay the reasonable fees and expenses of the Lender or any agents, attorneys, accountants, consultants selected by the Lender to act on its behalf in connection with this Agreement and the other Loan Documents, including, without limitation, any and all reasonable expenses incurred in connection with the making of the Loan or in connection with any litigation which may at any time be instituted involving the Loan, this Agreement, the other Loan Documents, or any of the other docum ents contemplated thereby, or in connection with the reasonable supervision or inspection of the Borrower, its properties, assets or operations or otherwise in connection with the administration of the foregoing. This obligation shall remain valid and in effect notwithstanding repayment of the Loan hereunder or te rmination of this Agreement.
4.6 Expenses. The Borrower shall pay all reasonable expenses incurred by the Lender in connection with the Loan, including reasonable fees and expenses of the Lender’s attorneys and other consultants . The Borrower shall, upon request, promptly reimburse the Lender for all reasonable amounts expended, advanced or incurred by the Lender to collect the amounts advanced hereunder, or to enforce the rights of the Lender under this Agreement or any other Loan Document, or to defend or assert the rights and claims of the Lender under the Loan Documents arising out of an Event of Default or with respect to the Program (by litigation or other proceedings) arising out of an Event of De fault, which amounts will include all court costs, attorneys’ fees and expenses, fees of auditors and accountants, and investigation expenses as may be reasonably incurred by the Lender in connection with any such matters (whether or not litigation is inst ituted), together with interest at the Default Rate.
4.7 Indemnity. In addition to its other obligations hereunder, and in addition to any and all rights of reimbursement, indemnification, subrogation and other rights of Lender pursuant hereto and under law or equity, to the fullest extent permitted by law, the Borrower ag rees to indemnify, hold harmless and defend the Lender, and each of its respective officers, directors, employees, attorneys and agents (each an “Indemnified Party”), against any and all losses, damages, claims, actions, liabilities, reasonable costs and e xpenses of any nature, kind or character (including, without limitation, reasonable attorneys’ fees, litigation and court costs, amounts paid in settlement (to the extent that the Borrower has consented to such settlement) and amounts paid to discharge judgments) (hereinafter, the “Liabilities”) to which the Indemnified Parties, or any of them, may become subject under federal or state securities laws or any other statutory law or at common law or otherwise, to the extent arising out of or based upon or in any way relating to this Agreement and the Loan Documents in all cases except where the Lender is proven to have been guilty of gross negligence or willful misconduct. The rights of any persons to indemnity hereunder shall survive the final payment or defe asance of the Loan. The provisions of this Section shall survive the termination of this Agreement.
4.8 Notice of Default. The Borrower will advise the Lender promptly in writing of the occurrence of any Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto.
4.9 Information; Financial Statements and Reports; Debt Service Coverage. (a) Borrower shall furnish or cause to be furnished to Lender:
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14 (1) Notice of Default. As soon as possible, and in any event not later than five (5) Business Days after the occ urrence of any Event of Default , a statement of an Authorized Representative of Borrower describing the details of such Event of Default and any curative action Borrower proposes to take;
(2) Financial and Administrative Statements . The Borrower shall provide to Lender monthly Financial Statements and Administrative Statements for the Lender to review , and prior to __________, 202 6, such reports shall include the Borrower’s monthly report of Administrative Activities, with a separate statement of EMS activity, and after __________, 2026, the Borrower shall include in its monthly report the number of service calls received in the previous month;
(3) Audit Reports. Promptly upon re ceipt thereof, copies of all reports, if any, submitted to Borrower by independent public accountants in connection with each annual, interim or special audit of the financial statements of Borrower made by such accountants, including the comment letter su bmitted by such accountants to management in con nection with their annual audit;
(4) Certification of Non-Foreign Status. Promptly upon request of Lender from time to time, a Certification of Non -Foreign Status, executed on or after the date of such request by Lender;
(5) Compliance Certificates . Borrower provides a compliance certificate, in form and substance satisfactory to Lender and certified by an Authorized Borrower Representative, to the effect that Borrower is in compliance with all covenants, terms and conditions applicable to Borrower, under or pursuant to the Loan Documents and under or pursuant to any other debt owing by Borrower, and disclosing any noncompliance therewith, and any Event of Default, and describing the status of Borrower’s actions to correct such noncompliance or Event of Default, as applicable; and
(6) Other Items and Information . Such other information concerning the assets, business, financial condition, operations, property, prospects and results of operations of Borrower, as Lender reasonably requests from time to time.
4.10 Continued Existence of Borrower. The Borrower shall take or cause to be taken all actions reasonably necessary to continue the Borrower’s existence during the term of this Agreement, including but not limited to the addition or substitution of one or more members of the Borrower and execution of an amendment to the Borrower’s JPA Agreement, to provide for the addition or substitution of such members.
5. NEGATIVE COVENANTS.
Borrower hereby covenants and agrees as follows, which covenants shall remain in effect so long as any Obligation or other obligation of Borrower under any of the other Loan Documents remains outstanding or unperformed. Borrower covenants and agrees that it will not, directly or indirectly:
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15 5.1 Assignment of Rights. Borrower shall not attempt to assign Borrower’s rights under the Loan Document without the Lender’s prior written consent.
5.2 Principal Place of Business. Borrower shall not change its principal place of business without providing 30 days’ prior written notice of the change to the Lender.
5.3 Fiscal Year. Borrower shall not change the times of commencement or termination of its fiscal year or other accounting periods, or change its methods of accounting , other than to conform to GAAP, without written notice to the Lender.
5.4 Publicity. Borrower shall not issue any publicity release or other communication to any print, broadcast or on-line media, post any sign or in any other way identify Lender as the source of the financing provided for herein, without the prior written approval of Lender in each instance (provided that nothing herein shall prevent Borrower from identifying Lender as the source of such financing to the extent that Borrower is required to do so by disclosure requirements applicable to public entities within the State of California).
6. DEFAULT AND REMEDIES.
6.1 Events of Default. Any one or more of the following events shall constitute an “Event of Default” by Borrower under this Agreement:
(a) Borrower fails to pay the regularly scheduled principal or interest on the Loan when due.
(b) Borrower fails to pay when due and payable, or when declared due and payable, any amounts payable hereunder or other Loan Documents and such amount is not paid within five (5) days after such amount is due and payable;
(c) Borrower fails or neglects to perform, or observe when due, any term, provision, condition, covenant, warranty or representation contained in this Agreement or in any Loan Documents, or in any other present or future agreement or arrangement between Borrow er and Lender, and such default shall not have been cured within fifteen (15) business days after notice thereof is given to Borrower by Lender;
(d) Any material portion of Borrower’s assets are attached, seized, subjected to a writ or distress warrant, or are levied upon, or come into the possession of any judicial officer, or any lien is filed or recorded against the assets of the Borrower by a governmental agency, or any judgment against the Borrower becomes a lien against any of the Borrower’s assets;
(e) A voluntary or involuntary petition in bankruptcy or for reorganization or for an arrangement or any composition, readjustment, liquidation, dissolution or similar relief pursuant to the federal bankruptcy law or 676
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16 under similar present or future federal or state bankruptcy or insolvency law, is filed by or against Borrower, and such petition is not dismissed within sixty (60) days thereafter;
(f) Borrower makes an assignment of all or any portion of its assets for the benefit of creditors;
(g) Borrower is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs;
(h) There is a default in any material agreement to which Borrower is a party with third parties resulting in a right by such third parti es to accelerate the maturity of Borrower’s indebtedness;
(i) Any government agency files a lien or commences an action or any third party files a claim or lawsuit against Borrower in connection with a violation of state or federal environmental statutes, whic h claim may result in a substantial fine or penalty or the payment of damages; (j) Borrower suspends its business or ceases doing business as a going concern;
(k) Failure by the Borrower to pay, when due, a final, non -appealable judgment or order over $500,000 which shall be rendered against the Borrower and such judgment has not been vacated, discharged, satisfied or stayed by the Borrower within a period of 30 days; and (l) Any representation or warranty in the Loan or Loan Documents is not true when made.
6.2 Lender’s Rights and Remedies . Upon the occurrence of an Event of Default, Lender may, at its election, without notice of its election and without demand, do any one or more of the following, all of which are authorized by Borrower:
(a) Terminate Lender’s obligation to make Advances to Borrower hereunder;
(b) Declare all of Borrower’s obligations to Lender immediately due and payable, whether evidenced by the Payment Schedule, this Agreement, by any of the other (collectively “Loan Documents”) or otherwise; (c) Exercise such remedies against the Members of the Borrower pursuant to Section 7(d) of the Joint Powers Agreement (Third Amended and Restated) dated March 23, 2021, by and among such Members of the Borrower, up to the maximum pro rata liability described therein for each of the Members of the Borrower; and
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17 (d) Exercise all other rights and remedies available to Lender under the Loan Documents, at law or in equity.
6.3 Default Interest. From and after the occurrence of any Event of Default, interest shall accrue daily at the Default Interest Rate on all amounts outstanding under the Loan and shall be payable on demand.
6.4 Remedies Cumulative . Lender’s rights and remedies under this Agreement, the Payment Schedule, the Loan Documents, and all other agreements shall be cumulative. No exercise by Lender of one right or remedy shall be deemed an election, and no waiver by Lender of any Event of Default on Borrower’s part shall be deemed a continuing waiver. No delay by Lender shall constitute a waiver, election, or acquiescence by it.
7. MISCELLANEOUS.
7.1 Further Assurances. Borrower shall execute and acknowledge (if appropriate) any further documents consistent with the terms of this Agreement, including documents in recordable form, as the Lender shall from time to time find necessary or appropriate to effectuate its purposes in entering into this Agreement.
7.2 Entire Agreement, Waivers, and Amendments. This Agreement incorporates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or part of the subject matter of this Agreement. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged. A waiver of the breach of the covenants, conditions or obligations under this Agreement by either party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement.
Any amendment or modification to this Agreement must be in writing and executed by the appropriate authorities of Lender and Borrower.
7.3 Waiver of Jury Trial. The Lender and the Borrower shall waive their right to trial by jury; provided, however, that in the event that the waiver of jury trial is unenforceable for any reason, the parties shall be submit to judicial reference.
7.4 Governing Law; Venue. This Agreement shall be governed in accordance with the laws of the State of California. Any legal action brought under this Agreement must be instituted in the Superior Court of the County of San Bernardino, State of California, in an appropriate municipal court in that county, or in the Federal District Court in the Central District of California.
7.5 Non-Discrimination. Borrower covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, religion, sex, marital status, national origin or ancestry in the construction, use, or enjoyment of the Program, nor shall Borrower itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation. Borrower shall comply with all applicable non - discrimination laws.
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18 7.6 Assignment. Lender may, at its option, assign this Agreement and/or its right to receive repayment of the Loan without the consent of Borrower. In no event shall Borrower assign or transfer any portion of this Agreement without the prior express written consent of Lender, which consent may be withheld in Lender’s sole and absolute discretion. No assumption of the Loan shall be permitted at any time.
7.7 Compliance With Laws . Borrower shall comply with all federal and state laws, statutes and regulations affecting the ownership of its property and the conduct of its business
7.8 Notices. All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be deemed to be given and made when delivered by hand, by recognized overnight delivery service, confirmed facsimile transmission (provided any telecopy or other electronic transmission received by any party after 4:00 p.m., local time, as evidenced by the time shown on such transmission, shall be deemed to have been received the following Business Day), or five (5) calendar days after deposited in the United States mail, registered or certified, postage prepaid, with return receipt requested, addressed as follows:
If to the Borrower: Consolidated Fire Agencies
1743 Miro Way
Rialto, California 92376
Attention: Executive Director
Telephone: ____________
with a copy to:
(which shall not constitute
notice to Borrower)
Lindsay K. Moore
Attorney at Law
Kingsley Bogard LLP
600 Coolidge Drive, Suite 160
Folsom, California 95630
Telephone: (916) 932-2500
If to the Lender:
City of Ontario
303 East B Street
Ontario, California 91764
Attention: City Manager
Telephone: (909) 395-2000
and with a copy to:
(which shall not constitute
notice to Lender)
Best Best & Krieger LLP
3390 University Avenue, 5th Floor
Riverside, CA 92501
Attention: Kim Byrens
Telephone: (951) 826-8273
7.9 Expenses. Borrower shall pay all expenses incurred by Lender with respect to this Agreement and the Loan.
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Loan Agreement
19 7.10 Execution in Counterpart. This Agreement may be executed in se veral counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart.
(Signature page follows)
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S-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
CONSOLIDATED FIRE AGENCIES a joint
powers agency, acting on behalf of its
CONFIRE EMS
Signature
Print Name
Signature
Print Name
CITY OF ONTARIO
By:
Its: City Manager
ATTEST:
City Clerk
-Signature Page-
City of Ontario
Confire EMS Program
Loan Agreement
APPROVED: City Attorney
By:
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EXHIBIT A
PAYMENT SCHEDULE
[To Come]
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Department: Economic Development
Prepared By: Peter Pallesen
Department:
Prepared By: Peter Pallesen
Staff Member Presenting: Jennifer McLain
Hiramoto, Economic Development Director
Reviewed By: Thailin Martin, Charity Hernandez
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 5
SUBJECT:
PROFESSIONAL SERVICE AGREEMENTS FOR ON-CALL ARCHITECTURAL SERVICES
CITY OF ONTARIO
Agenda Report
February 17, 2026
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager, or designee, to execute three-year On-Call Professional Services Agreements with five firms specializing in providing consulting services related to architecture and historic preservation; and authorize the City Manager, or designee, the option to extend the agreements for up to two additional one-year periods. In no event shall the proposed agreements with each firm exceed $500,000 over a five-year period.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:
The Fiscal Year 2025-26 Adopted Budget includes appropriations in the General Fund for these services. If approved, appropriations will be included in future years' budgets to the City Council consistent with the budget adoption process. In no event shall the proposed agreements with each firm exceed $500,000 over a five-year period.
BACKGROUND & ANALYSIS:
The City's Five-Year Capital Improvement Project budget includes numerous new developments and the redevelopment of existing properties, including historic properties, specifically in Downtown Ontario. Staff has identified a need to contract with multiple firms to provide on-call consulting services. These services include but are not limited to, architecture, historic preservation, structural analysis, urban design, entitlement processing, cost estimating, and construction document preparation. On September 10, 2025, the City solicited requests for qualifications for professional architecture and historic preservation services. The City received thirteen responses, and selected City Staff reviewed each of the proposals to determine a pre-qualified list of five firms. The firms selected were deemed to be the most qualified in their respective categories based on their broad range of expertise demonstrated by their services provided to municipal agencies and their capability to perform the work in a timely manner. Staff is 683
recommending on-call contracts with the five firms. Contracting with numerous firms will ensure a cost-effective option and that sufficient resources are always available for projects and task orders as they arise. In addition, Staff is recommending that all contracts be executed between the firms, the City, and the Ontario Housing Authority, so that any City department can make use of these services for their respective projects. The execution of these agreements does not guarantee any payment or assignment to any firm.
Should all contracts meet their not-to-exceed amounts of $500,000 each, the total not-to-exceed would amount to $2,500,000 over the course of five-years.
The pre-selection of firms on the basis of qualification permits the assignment of tasks on the basis of best value, on the basis of specialized expertise, and/or availability. Funds shall only be encumbered for each consultant when the City has an assigned project for said consultant, at which time a purchase order for said project will be opened, and the dollar amount will be based on the consultant's proposal for the services to be rendered. A list of the awarded firms is included below:
Thirtieth Street Architects, Inc. - Newport Beach, CA
Page and Turnbull, Inc. - Los Angeles, CA
Garavaglia Architecture, Inc. - San Francisco, CA
Omgivning, Inc. - Los Angeles, CA
Frederick Fisher and Partners, Inc. - Los Angeles, CA
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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
CITY OF ONTARIO
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 -4196, County of San Bernardino, State of California ("City") and Frederick Fisher and Partn ers, Inc ., a corporation with its principal place of business at 12248 Santa Monica Blvd. Los Angeles, CA 90025 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Professional Architect and Historic Preservation On -Call services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for Professional Architect and Historic Preservation On-Call project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General 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 Architect and Historic Preservation On -Call consulting services necessary 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.
3.1.2 Term. The term of this Agreement shall be from March 1, 2026 to March 1, 2029 685
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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 2 additional one -year terms.
Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, fo r all 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 five hundred thousand dollars ($500,000) 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.
3.2.2 Payment of Compensation . Consultant shall submit to City a monthly invoi ce which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses . Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant 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 Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.2.5 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. Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial in stitution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates . The Se rvices 686
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shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, director s, employees or agents shall have control over the conduct of Consultant or any of Con sultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such ad ditional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services . Consultant shall perform the Services in a prompt an d timely manner and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Joseph Coriaty, Managing Partner and Peter Pallesen, Economic Development Coordinator.
3.3.5 City's Representative . The City hereby designates Peter Pallesen, Economic Development Coordinator, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scop e of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative . Consultant hereby designates Joseph Coriaty, Managing Partner, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full a uthority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant 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.
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3.3.8 Standard of Care; Performance of Employees . Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employe es and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employ ee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes an d other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 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 Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
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3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal law s, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant . Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies 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.
3.3.10.3 Equal Opportunity Employment . Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, 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, recruitm ent or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant 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 re quirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory ag ency for violations of applicable laws, rules and/or reg ulations by Consultant, its sub consultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance . Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise 689
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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.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all r equired insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required . As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so. (A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross -liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $2,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability I nsurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
(D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $2,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead , asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims -made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
(E) If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy. 690
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement. Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability: (1) Additional Insured: 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 . (2) Cancellation: Required i nsurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (C) Professional Liability (Errors & Omissio ns): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non - payment of premium. (2) This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend. (D) Workers' Compensation: (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non -payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non -Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be approved in writing by the City and shall protect the City, its officials, officers, 691
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employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or ext ended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduc tion 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.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel) . Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting . 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.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. 692
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(E) The limits set forth herei n shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of su ch coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants . Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant 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, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It 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 Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law.
Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, a nd volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. 693
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3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records di rectly to the DIR. Any stop orders issued by the DIR against Consultant or any sub consultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self -insurance in a ccordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination . City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination . If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 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, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all cl aims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
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3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation sha ll be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants . Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court , 4 Cal. 5th 903 ( 2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section
3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 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:
Consultant: Frederick Fisher and Partners, Inc.
12248 Santa Monica Blvd.
Los Angeles, CA 90025
ATTN: Joseph Coriaty, Managing Partner
City: City of Ontario
303 East “B” Street
Ontario, CA 91764
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ATTN: Peter Pallesen, Economic Development Coordinator Such notice s hall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproductio n expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non -exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, direct ors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant. 696
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3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and age nts free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input reco rd data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Servi ces or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information . The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdict ion, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), a nd hold City harmless from any legal action brought to compel such release; and/or (2) a final and non -appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 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.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Pa rties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees . If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recov er from the losing party reason able attorneys’ fees and all costs of such action.
3.7.8 Governing Law. 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, disputed work, claims and/or changed conditions, Consultant 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 697
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any subsequent lawsuit based upon the Government Code claims shall be limited to t hose matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence . Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Emplo y Other Consultants . City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer . Consultant shall not assi gn, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall con tain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 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 Consultant include all personnel, e mployees, agents, and subconsultants of Consultant, 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.
3.7.14 Amendment; Modification. No supplement, modification, or amendmen t of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 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.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 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.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any 698
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company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants 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.
3.7.19 Authority to Enter Agreement. Consultant 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.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
SIGNATURES ON NEXT PAGE
SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
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FREDERICK FISHER AND PARTNERS, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF ONTARIO FREDERICK FISHER AND PARTNERS,
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:
City Clerk
EXHIBIT "A"
SCOPE OF SERVICES
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Consultant must meet the minimum qualifications standards of the Secretary of the Interior Professional Qualifications (Code of Federal Regulations, 36 CFR Part 61), and be capable of furnishing all necessary professional and technical services set forth below. The City will be utilizing General, Federal, State, and other funds for the projects. The list is not exhaustive and may include other services as directed or requested by City staff. The actual Scope of services will be determined on a project-by-project basis.
WORKING KNOWLEDGE OF THE FOLLOWING:
• Project Administration and Management Services
• Site Analysis and Feasibility Studies
• Historic Structure Reports and Building Conditions Assessments • Statement of Historic Significance and Identification of Character Defining Features • Conceptual/Schematic Studies
• Entitlement Processing
• Site Development Planning
• Historic Preservation Planning, Review, and Design
• ADA Compliance Review and Planning
• Implementation of Seismic Retrofitting (or reinforcement) Design Concepts • Urban Design, Application of New Urbanist Principles
• Schedule Developing
• Construction Document Development, Specification Writing • Cost Estimating Services
• Contract Bidding and/or Negotiation Services, i.e., Change Orders, etc. • Construction Contract Administration
• Department of Interior Standards for the Treatment of Historic Properties and NPS Preservation Briefs • California Historic Building Code
• Adaptive Reuse of Historic Buildings
• Federal or State Tax Credit Projects
The Consultant will be expected to work closely with staff for the duration of the assigned projects and attend all meetings and workshops, as necessary.
EXHIBIT “B"
SCHEDULE OF SERVICES
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On-call services will be on as needed basis.
EXHIBIT "C"
COMPENSATION
702
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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
CITY OF ONTARIO
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 -4196, County of San Bernardino, State of California ("City") and Garavaglia Architecture, Inc. a corporation with its principal place of business at 582 Market Street, Suite 1800, San Francisco, CA 94104 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Professional Architect and Historic Preservation On -Call services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for Professional Architect and Historic Preservation On-Call project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General 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 Architect and Historic Preservation On -Call consulting services necessary 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.
3.1.2 Term. The term of this Agreement shall be from March 1, 2026 to March 1, 2029 704
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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 2 additional one -year terms.
Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, fo r all 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 five hundred thousand dollars ($500,000) 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.
3.2.2 Payment of Compensation . Consultant shall submit to City a monthly invoi ce which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses . Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant 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 Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.2.5 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. Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial in stitution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates . The Se rvices 705
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shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, director s, employees or agents shall have control over the conduct of Consultant or any of Con sultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income t ax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services . Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhib it "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event tha t City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Michael Garavaglia, President and Peter Pallesen, Economic Development Coordinator.
3.3.5 City's Representative . The City hereby designates Peter Pallesen, Economic Development Coordinator, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Michael Garavaglia, President, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant 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.
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3.3.8 Standard of Care; Performance of Employees . Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employ ee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of per sons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes an d other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 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 Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
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3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant . Consultant certifies 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 Ref orm and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies 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.
3.3.10.3 Equal Opportunity Employment . Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, 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. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant 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 South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or reg ulations by Consultant, its sub consultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance . Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise 708
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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.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required . As a condition precedent to the effectiveness of this Agreement for work to be performed he reunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so. (A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in add ition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross -liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "An y Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $2,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
(D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $2,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be perf ormed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims -made basis, the retroactive date shall precede the effective date of th e initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
(E) If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy. 709
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insur ed: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement. Additional Insured Endorsements shall not (1) b e restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial Gen eral Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability: (1) Additional Insured: 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 Ve ndor is responsible. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (C) Professional Liability (Errors & Omissions ): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days sh all be allowed for non - payment of premium. (2) This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend. (D) Workers' Compensation: (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non -payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the in surer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non -Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifica lly allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be approved in writing by the City and shall protect the City, its officials, officers, 710
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employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or ext ended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduc tion 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.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel) . Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting . 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.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. 711
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(E) The limits set forth he rein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants . Consultant shall include all subconsultants engaged in any work for Consult ant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant sha ll provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant 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, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It 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 Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law.
Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents , and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. 712
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3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any sub consultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self -insurance in a ccordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination . City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination . If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 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, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all cl aims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
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3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation sha ll be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants . Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court , 4 Cal. 5th 903 ( 2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section
3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 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:
Consultant: Garavaglia Architecture, Inc.
582 Market Street, Suite 1800,
San Francisco, CA 94104
ATTN: Michael Garavaglia, President
City: City of Ontario
303 East “B” Street
Ontario, CA 91764
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ATTN: Peter Pallesen, Economic Development Coordinator Such notice sh all be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduct ion expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non -exclusive and perpetual license for an y Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Document s & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & D ata at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant. 715
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3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Docume nts & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for an y purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, tr ade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information . The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non -appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 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.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matt er hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees . If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recov er from the losing party reason able attorneys’ fees and all costs of such action.
3.7.8 Governing Law. 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, disputed work, claims and/or changed conditions, Consultant must comply with the claim proc edures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and 716
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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 Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence . Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Employ Other Consultants . City reserves ri ght to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer . Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject t o all provisions stipulated in this Agreement.
3.7.13 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 Consultant include all personnel, employees, agents, and subconsultants o f Consultant, 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.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 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.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 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.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any 717
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company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or sh all cause its employees or subconsultants 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.
3.7.19 Authority to Enter Agreement. Consultant 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.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
SIGNATURES ON NEXT PAGE
SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
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GARAVAGLIA ARCHITECTURE, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF ONTARIO GARAVAGLIA ARCHITECTURE, 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:
City Clerk
EXHIBIT "A"
SCOPE OF SERVICES
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Consultant must meet the minimum qualifications standards of the Secretary of the Interior Professional Qualifications (Code of Federal Regulations, 36 CFR Part 61), and be capable of furnishing all necessary professional and technical services set forth below. The City will be utilizing General, Federal, State, and other funds for the projects. The list is not exhaustive and may include other services as directed or requested by City staff. The actual Scope of services will be determined on a project-by-project basis.
WORKING KNOWLEDGE OF THE FOLLOWING:
• Project Administration and Management Services
• Site Analysis and Feasibility Studies
• Historic Structure Reports and Building Conditions Assessments • Statement of Historic Significance and Identification of Character Defining Features • Conceptual/Schematic Studies
• Entitlement Processing
• Site Development Planning
• Historic Preservation Planning, Review, and Design
• ADA Compliance Review and Planning
• Implementation of Seismic Retrofitting (or reinforcement) Design Concepts • Urban Design, Application of New Urbanist Principles
• Schedule Developing
• Construction Document Development, Specification Writing • Cost Estimating Services
• Contract Bidding and/or Negotiation Services, i.e., Change Orders, etc. • Construction Contract Administration
• Department of Interior Standards for the Treatment of Historic Properties and NPS Preservation Briefs • California Historic Building Code
• Adaptive Reuse of Historic Buildings
• Federal or State Tax Credit Projects
The Consultant will be expected to work closely with staff for the duration of the assigned projects and attend all meetings and workshops, as necessary.
EXHIBIT “B"
SCHEDULE OF SERVICES
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On-call services will be on as needed basis.
EXHIBIT "C"
COMPENSATION
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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
CITY OF ONTARIO
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 -4196, County of San Bernardino, State of California ("City") and Omgivning, Inc ., a corporation with its principal place of business at 1301 N.
Broadway, Los Angeles, CA 90012 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Professional Architect and Historic Preservation On -Call services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for Professional Architect and Historic Preservation On-Call project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General 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 Architect and Historic Preservation On -Call consulting services necessary 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.
3.1.2 Term. The term of this Agreement shall be from March 1, 2026 to March 1, 2029 724
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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 2 additional one -year terms.
Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, fo r all 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 five hundred thousand dollars ($500,000) 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.
3.2.2 Payment of Compensation . Consultant shall submit to City a monthly invoi ce which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses . Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant 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 Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.2.5 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. Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial in stitution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates . The Se rvices 725
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shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Con sultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, s alaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, bu t not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services . Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Jonathan Griffin, Project Manager and Peter Pallesen, Economic Development Coordinator.
3.3.5 City's Representative . The City hereby designates Peter Pallesen, Economic Development Coordinator, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Cons ultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative . Consul tant hereby designates Jonathan Griffin, Project Manager, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant 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.
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3.3.8 Standard of Care; Performance of Employees . Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall hav e sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employ ee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes an d other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 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 Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
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3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant . Consultant certifies 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 Ref orm and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies 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.
3.3.10.3 Equal Opportunity Employment . Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, 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. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant 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 South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or reg ulations by Consultant, its sub consultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance . Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise 728
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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.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required . As a condition precedent to the effectiveness of this Agreement for work to be performed he reunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so. (A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in add ition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross -liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "An y Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $2,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
(D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $2,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be perf ormed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims -made basis, the retroactive date shall precede the effective date of th e initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
(E) If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy. 729
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insur ed: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement. Additional Insured Endorsements shall not (1) b e restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial Gen eral Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability: (1) Additional Insured: 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 Ve ndor is responsible. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (C) Professional Liability (Errors & Omissions ): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days sh all be allowed for non - payment of premium. (2) This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend. (D) Workers' Compensation: (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non -payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the in surer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non -Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifica lly allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be approved in writing by the City and shall protect the City, its officials, officers, 730
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employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or ext ended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduc tion 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.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel) . Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting . 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.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. 731
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(E) The limits set forth he rein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants . Consultant shall include all subconsultants engaged in any work for Consult ant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant sha ll provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant 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, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It 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 Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law.
Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents , and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. 732
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3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any sub consultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self -insurance in a ccordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination . City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination . If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 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, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all cl aims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
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3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation sha ll be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants . Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court , 4 Cal. 5th 903 ( 2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section
3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 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:
Consultant: Omgivning, Inc.
1303 N. Broadway,
Los Angeles, CA 90012
ATTN: Jonathan Griffin, Project Manager
City: City of Ontario
303 East “B” Street
Ontario, CA 91764
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ATTN: Peter Pallesen, Economic Development Coordinator Such notice shall be deemed made when p ersonally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne b y City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon pay ment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable eff ort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non -exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, direct ors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant. 735
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3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and age nts free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input reco rd data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Servi ces or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information . The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdict ion, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), a nd hold City harmless from any legal action brought to compel such release; and/or (2) a final and non -appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 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.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the Pa rties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.7.7 Attorneys’ Fees . If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recov er from the losing party reason able attorneys’ fees and all costs of such action.
3.7.8 Governing Law. 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, disputed work, claims and/or changed conditions, Consultant 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 736
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any subsequent lawsuit based upon the Government Code claims shall be limited to t hose matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence . Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Emplo y Other Consultants . City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer . Consultant shall not assi gn, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall con tain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 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 Consultant include all personnel, e mployees, agents, and subconsultants of Consultant, 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.
3.7.14 Amendment; Modification. No supplement, modification, or amendmen t of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 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.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 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.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any 737
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company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants 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.
3.7.19 Authority to Enter Agreement. Consultant 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.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
SIGNATURES ON NEXT PAGE
SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
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OMGIVNING, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF ONTARIO OMGIVNING, 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:
City Clerk
EXHIBIT "A"
SCOPE OF SERVICES
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Consultant must meet the minimum qualifications standards of the Secretary of the Interior Professional Qualifications (Code of Federal Regulations, 36 CFR Part 61), and be capable of furnishing all necessary professional and technical services set forth below. The City will be utilizing General, Federal, State, and other funds for the projects. The list is not exhaustive and may include other services as directed or requested by City staff. The actual Scope of services will be determined on a project-by-project basis.
WORKING KNOWLEDGE OF THE FOLLOWING:
• Project Administration and Management Services
• Site Analysis and Feasibility Studies
• Historic Structure Reports and Building Conditions Assessments • Statement of Historic Significance and Identification of Character Defining Features • Conceptual/Schematic Studies
• Entitlement Processing
• Site Development Planning
• Historic Preservation Planning, Review, and Design
• ADA Compliance Review and Planning
• Implementation of Seismic Retrofitting (or reinforcement) Design Concepts • Urban Design, Application of New Urbanist Principles
• Schedule Developing
• Construction Document Development, Specification Writing • Cost Estimating Services
• Contract Bidding and/or Negotiation Services, i.e., Change Orders, etc. • Construction Contract Administration
• Department of Interior Standards for the Treatment of Historic Properties and NPS Preservation Briefs • California Historic Building Code
• Adaptive Reuse of Historic Buildings
• Federal or State Tax Credit Projects
The Consultant will be expected to work closely with staff for the duration of the assigned projects and attend all meetings and workshops, as necessary.
EXHIBIT “B"
SCHEDULE OF SERVICES
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On-call services will be on as needed basis.
EXHIBIT "C"
COMPENSATION
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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
CITY OF ONTARIO
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 -4196, County of San Bernardino, State of California ("City") and Page and Turnbull, Inc. a corporation with its principal place of business at 523 W 6th Street, Suite 1013, Los Angeles, CA 90014 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Professional Architect and Historic Preservation On -Call services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for Professional Architect and Historic Preservation On-Call project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General 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 Architect and Historic Preservation On -Call consulting services necessary 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.
3.1.2 Term. The term of this Agreement shall be from March 1, 2026 to March 1, 2029 743
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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 2 additional one -year terms.
Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, fo r all 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 five hundred thousand dollars ($500,000) 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.
3.2.2 Payment of Compensation . Consultant shall submit to City a monthly invoi ce which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses . Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant 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 Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.2.5 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. Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial in stitution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates . The Se rvices 744
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shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Con sultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, s alaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, bu t not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services . Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: John D. Lesak, Principal and Peter Pallesen, Economic Development Coordinator.
3.3.5 City's Representative . The City hereby designates Peter Pallesen, Economic Development Coordinator, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative . Consultant here by designates John D. Lesak, Principal, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant 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.
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3.3.8 Standard of Care; Performance of Employees . Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and th at such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employ ee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes an d other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 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 Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
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3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant . Consultant certifies 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 Ref orm and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies 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.
3.3.10.3 Equal Opportunity Employment . Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, 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. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant 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 South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or reg ulations by Consultant, its sub consultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance . Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise 747
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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.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required . As a condition precedent to the effectiveness of this Agreement for work to be performed he reunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so. (A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in add ition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross -liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "An y Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $2,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
(D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $2,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be perf ormed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims -made basis, the retroactive date shall precede the effective date of th e initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
(E) If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy. 748
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insur ed: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement. Additional Insured Endorsements shall not (1) b e restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial Gen eral Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability: (1) Additional Insured: 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 Ve ndor is responsible. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (C) Professional Liability (Errors & Omissions ): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days sh all be allowed for non - payment of premium. (2) This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend. (D) Workers' Compensation: (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non -payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the in surer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non -Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifica lly allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be approved in writing by the City and shall protect the City, its officials, officers, 749
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employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or ext ended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduc tion 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.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel) . Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting . 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.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. 750
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(E) The limits set forth he rein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants . Consultant shall include all subconsultants engaged in any work for Consult ant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant sha ll provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant 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, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It 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 Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law.
Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents , and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. 751
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3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any sub consultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self -insurance in a ccordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination . City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination . If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 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, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all cl aims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
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3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation sha ll be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants . Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court , 4 Cal. 5th 903 ( 2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section
3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 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:
Consultant: Page and Turnbull, Inc.
523 W. 6th Street, Suite 1013,
Los Angeles, CA 90014
ATTN: John D. Lesak, Principal
City: City of Ontario
303 East “B” Street
Ontario, CA 91764
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ATTN: Peter Pallesen, Economic Development Coordinator Such notice shall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shal l be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to C ity upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a re asonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non -exclusive and perpetual license for any Documents & Da ta the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which w ere prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant. 754
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3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other pro prietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultan t. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information . The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to f ully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non -appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 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.
3.7.6 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.
3.7.7 Attorneys’ Fees . If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recov er from the losing party reason able attorneys’ fees and all costs of such action.
3.7.8 Governing Law. 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, disputed work, claims and/or changed conditions, Consultant 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 755
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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 Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence . Time is of the essence for e ach and every provision of this Agreement.
3.7.10 City's Right to Employ Other Consultants . City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer . Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assig n or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 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 w ork days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, 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.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 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.
3.7.16 No Third-Party Beneficiaries. There are n o intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 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.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure t his Agreement. Consultant warrants that it has not paid nor has it agreed to pay any 756
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company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent u pon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants 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 C ity, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter Agreement. Consultant 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.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
SIGNATURES ON NEXT PAGE
SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
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PAGE AND TRUNBULL, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF ONTARIO PAGE AND TRUNBULL, 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:
City Clerk
EXHIBIT "A"
SCOPE OF SERVICES
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Consultant must meet the minimum qualifications standards of the Secretary of the Interior Professional Qualifications (Code of Federal Regulations, 36 CFR Part 61), and be capable of furnishing all necessary professional and technical services set forth below. The City will be utilizing General, Federal, State, and other funds for the projects. The list is not exhaustive and may include other services as directed or requested by City staff. The actual Scope of services will be determined on a project-by-project basis.
WORKING KNOWLEDGE OF THE FOLLOWING:
• Project Administration and Management Services
• Site Analysis and Feasibility Studies
• Historic Structure Reports and Building Conditions Assessments • Statement of Historic Significance and Identification of Character Defining Features • Conceptual/Schematic Studies
• Entitlement Processing
• Site Development Planning
• Historic Preservation Planning, Review, and Design
• ADA Compliance Review and Planning
• Implementation of Seismic Retrofitting (or reinforcement) Design Concepts • Urban Design, Application of New Urbanist Principles
• Schedule Developing
• Construction Document Development, Specification Writing • Cost Estimating Services
• Contract Bidding and/or Negotiation Services, i.e., Change Orders, etc. • Construction Contract Administration
• Department of Interior Standards for the Treatment of Historic Properties and NPS Preservation Briefs • California Historic Building Code
• Adaptive Reuse of Historic Buildings
• Federal or State Tax Credit Projects
The Consultant will be expected to work closely with staff for the duration of the assigned projects and attend all meetings and workshops, as necessary.
EXHIBIT “B"
SCHEDULE OF SERVICES
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On-call services will be on as needed basis.
EXHIBIT "C"
COMPENSATION
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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
CITY OF ONTARIO
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered as of ____________, by and between the City of Ontario, a municipal corporation organized under the laws of the State of California with its principal place of business at 303 East “B” Street, Ontario, California 91764 -4196, County of San Bernardino, State of California ("City") and Thirtieth Street Architects, Inc. a corporation with its principal place of business at 2821 Newport Blvd., Newport Beach, CA 92663 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Professional Architect and Historic Preservation On -Call services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for Professional Architect and Historic Preservation On-Call project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General 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 Architect and Historic Preservation On -Call consulting services necessary 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.
3.1.2 Term. The term of this Agreement shall be from March 1, 2026 to March 1, 2029 763
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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 2 additional one -year terms.
Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, fo r all 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 five hundred thousand dollars ($500,000) 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.
3.2.2 Payment of Compensation . Consultant shall submit to City a monthly invoi ce which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the City for any reason whatsoever.
3.2.3 Reimbursement for Expenses . Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant 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 Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.2.5 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. Consultant shall provide the City with ACH payment details whereby the City shall initiate the ACH transfers to Consultant in the amount required pursuant to a properly issued and correct invoice or under this Agreement. Each Party shall undertake any and all required actions and execute any required documents, instruments, or agreements required to effectuate the requirements of this Section. In the event the City erroneously deposits funds into an account, or otherwise deposits funds to which Consultant is not entitled: (1) Consultant shall immediately notify the City and the financial institution; (2) Consultant shall not withdraw any of the funds which were erroneously deposited or to which Consultant is not entitled; and (3) Consultant authorizes both the City and financial in stitution to take all actions necessary to correct the error and return to the City all funds erroneously deposited or to which Consultant is not entitled.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates . The Se rvices 764
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shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Any personnel performing the Services on behalf of Consultant shall not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, or any of its officials, officers, director s, employees or agents shall have control over the conduct of Consultant or any of Con sultants officers, employees or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income t ax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services . Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhib it "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event tha t City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: John Loomis, Chief Financial Officer and Peter Pallesen, Economic Development Coordinator.
3.3.5 City's Representative . The City hereby designates Peter Pallesen, Economic Development Coordinator, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the pro visions contained in this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates John Loomis, Chief Financial Officer, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordin ation of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant 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.
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3.3.8 Standard of Care; Performance of Employees . Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and appr ovals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employ ee of the Consultant or its subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.9.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the services, only to the extent such strikes an d other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the services and Agreement.
3.3.9.3 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 Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
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3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully informed of and in compliance with all local, state and federal law s, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant . Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies 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.
3.3.10.3 Equal Opportunity Employment . Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, c olor, 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 . Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant 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 South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its sub consultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance . Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s or dinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this Section, or any other relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise 767
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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.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to co mmence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required . As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial p erformance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so. (A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact e quivalent, with limits of not less than $2,000,000 per occurrence and no less than $4,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage fo r contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross -liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activiti es with limits of not less than $2,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
(D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $2,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage t anks, laboratory analysis, soil work, etc.). If coverage is written on a claims -made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be e xercised for a period of at least five (5) years from termination or expiration of this Agreement.
(E) If umbrella or excess liability coverage is used to meet any required limit(s) specified herein, the Contractor shall provide a “follow form” endorsement satisfactory to the City indicating that such coverage is subject to the same terms and conditions as the underlying liability policy. 768
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3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds w ith regard to liability and defense of suits or claims arising out of the performance of the Agreement. Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability: (1) Additional Insured: 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 . (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (C) Professional Liability (Errors & Omissions ): (1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non - payment of premium. (2) This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend. (D) Workers' Compensation: (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non -payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non -Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be approved in writing by the City and shall protect the City, its officials, officers, 769
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employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or ext ended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduc tion 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.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel) . Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting . 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.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. 770
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(E) The limits set forth herei n shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of su ch coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants . Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant 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, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It 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 Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law.
Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, a nd volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. 771
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3.4.3 Compliance Monitoring. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records di rectly to the DIR. Any stop orders issued by the DIR against Consultant or any sub consultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self -insurance in a ccordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination . City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those Services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
3.5.1.2 Effect of Termination . If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.5.1.3 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, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all cl aims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
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3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation sha ll be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants . Consultant is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court , 4 Cal. 5th 903 ( 2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant shall only utilize its employees to provide the Services. Consultant may not provide the services through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless approved by the City as set forth in Section
3.7.2.2 below. Consultant represents and warrants that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees, and that Consultant complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Consultant to use a Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or subconsultants without the City’s prior written consent.
3.7.3 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:
Consultant: Thirtieth Street Architects, Inc.
2821 Newport Blvd.
Newport Beach, CA 92663
ATTN: John Loomis, Chief Financial Officer
City: City of Ontario
303 East “B” Street
Ontario, CA 91764
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ATTN: Peter Pallesen, Economic Development Coordinator Such notice sh all be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.7.4.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non -exclusive and perpetual license for any D ocuments & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant. 774
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3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any p urposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.7.4.6 Confidential Information . The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information. Consultant shall have five (5) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non -appealable order by a court of competent jurisdiction requires that City release such information.
3.7.5 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 o r convenient to attain the purposes of this Agreement.
3.7.6 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.
3.7.7 Attorneys’ Fees . If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recov er from the losing party reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. 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, disputed work, claims and/or changed conditions, Consultant 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 775
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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 Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence . Time is of the essence for each and every provision of this Agreement.
3.7.10 City's Right to Employ Other Consultants . City reserves right to employ other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.7.12 Assignment or Transfer . Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 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 Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City inc lude 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.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 Waiver. No waiver of any default sh all 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.
3.7.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.7.17 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.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fid e employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any 776
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company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with t he 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 o r employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter Agreement. Consultant 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.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, inc luding, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
SIGNATURES ON NEXT PAGE
SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
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THIRTIETH STREET ARCHITECTS, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF ONTARIO THIRTIETH STREET ARCHITECT, 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:
City Clerk
EXHIBIT "A"
SCOPE OF SERVICES
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Consultant must meet the minimum qualifications standards of the Secretary of the Interior Professional Qualifications (Code of Federal Regulations, 36 CFR Part 61), and be capable of furnishing all necessary professional and technical services set forth below. The City will be utilizing General, Federal, State, and other funds for the projects. The list is not exhaustive and may include other services as directed or requested by City staff. The actual Scope of services will be determined on a project-by-project basis.
WORKING KNOWLEDGE OF THE FOLLOWING:
• Project Administration and Management Services
• Site Analysis and Feasibility Studies
• Historic Structure Reports and Building Conditions Assessments • Statement of Historic Significance and Identification of Character Defining Features • Conceptual/Schematic Studies
• Entitlement Processing
• Site Development Planning
• Historic Preservation Planning, Review, and Design
• ADA Compliance Review and Planning
• Implementation of Seismic Retrofitting (or reinforcement) Design Concepts • Urban Design, Application of New Urbanist Principles
• Schedule Developing
• Construction Document Development, Specification Writing • Cost Estimating Services
• Contract Bidding and/or Negotiation Services, i.e., Change Orders, etc. • Construction Contract Administration
• Department of Interior Standards for the Treatment of Historic Properties and NPS Preservation Briefs • California Historic Building Code
• Adaptive Reuse of Historic Buildings
• Federal or State Tax Credit Projects
The Consultant will be expected to work closely with staff for the duration of the assigned projects and attend all meetings and workshops, as necessary.
EXHIBIT “B"
SCHEDULE OF SERVICES
779
BB&K (2024) 18 AGREEMENT FOR PROFESSIONAL SERVICES
46700.00100\33225203
On-call services will be on as needed basis.
EXHIBIT "C"
COMPENSATION
780
BB&K (2024) 19 AGREEMENT FOR PROFESSIONAL SERVICES
46700.00100\33225203
781
Department: Public Works
Prepared By: Manuel Rebolledo
Staff Member Presenting: Tito Haes, Executive
Director Public Works
Reviewed By: Jacqueline Leon
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 6
SUBJECT:
AUTHORIZE THE PURCHASE OF FLEET VEHICLES
CITY OF ONTARIO
Agenda Report
February 17, 2026
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council take the following actions:
A
.
Authorize the sole source purchase and delivery of three EV Mack Automated Refuse Trucks with EV Chargers for the Integrated Waste Department for a total not-to-exceed amount of $2,297,513 from Tec Equipment of La Mirada, California. Tec Equipment was the sole vendor that was able to provide a compliant BABA (Build America Buy America) refuse truck; and B
.
Authorize the cooperative purchase and delivery of two Ford F-650 Bin Cleaning Trucks for the Integrated Waste Department for a total not-to-exceed amount of $627,542 from PB Loader of Fresno, California, consistent with the terms and conditions of the Sourcewell Cooperative Contract No.050625-PBL.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Maintain the Current High Level of Public Safety
FISCAL IMPACT:
The Fiscal Year 2025-26 Adopted Budget includes appropriations in the Integrated Waste Fund for the purchase of additional vehicles. The total cost of the vehicles recommended for purchase is a total not-to-exceed amount of $2,925,055. The vehicles will be funded by the Solid Waste Infrastructure for Recycling (SWIFR) grant program funded by the United States Environmental Protection Agency (EPA).
BACKGROUND & ANALYSIS:
On December 17, 2024, the City Council approved the acceptance of funding for the SWIFR grant funded by the EPA. The funding supports improvements to waste management systems and programs allowing for resources to be used more efficiently, reducing the impact on the climate. Eligible expenses for this grant include materials and mechanisms to improve infrastructure, modernize technology, and increase the recycling diversion rate and quality of materials being collected through municipal solid waste programs.
The Integrated Waste Department in the Public Works Agency proposed to utilize the grant funding to facilitate the City’s compliance with California Senate Bill 1383, which requires cities in California 782
to reduce organic waste sent to landfills by 75% and divert 20% of edible food to food recovery organizations by 2025. Since the acceptance of the grant, the Integrated Waste Department has established a digital food donation marketplace for businesses and nearby non-profit organizations to recover edible food for those in need. The Integrated Waste Department has also purchased new organic waste and mixed-waste recycling containers to expand the current waste collection routes to enhance efficiency and increase the recycling diversion rates in the City.
The five vehicles recommended for purchase will further expand and enhance the City’s organic waste and recycling collection system in alignment with SB 1383 requirements and EPA SWIFR grant objectives. The purchase of three electric vehicles (EV) automated refuse trucks will support both existing and future organic waste and recycling routes as the program continues to grow. These EV trucks are well suited for organics and recycling collection due to their ability to maximize operational capacity, battery efficiency, and payload while reducing greenhouse gas emissions.
Transitioning these routes from compressed natural gas (CNG) vehicles to EVs supports the City’s long-term sustainability goals and regulatory compliance efforts.
In addition, the acquisition of two bin-cleaning trucks will allow the City to clean and maintain both residential carts and commercial bins. Regular cleaning will extend the useful life of containers, reduce the need for frequent exchanges, and minimize the purchase of replacement equipment. By maintaining and reusing existing containers for a longer period, the City will reduce waste, improve sanitation, and support the circular use of materials, further aligning with the goals of the SWIFR grant.
In general conformance with the provisions of Government Code Section 54201 through 54204, Ontario Municipal Code Section 2-6.29 allows for the purchase of supplies and equipment through cooperative purchasing programs, pursuant to California Government Code Section 6502 and City of Ontario Resolution No. 91-141. Cooperative purchasing allows the City to pool its procurement power with other public agencies to obtain lower pricing than otherwise might be possible.
QUANTITY
TYPE
PRICE
3 EV Mack Automated Refuse
Truck/EV Chargers
$2,297,513
2 Ford F-650 Bin Cleaning
Truck
$627,542
TOTAL
TOTAL
5 $2,925,055
783
050625-PBL
v052824 1
MASTER AGREEMENT #050625
CATEGORY: Roadway Maintenance Equipment
SUPPLIER: W>ŽĂĚĞƌŽƌƉŽƌĂƟŽŶ
This Master Agreement (Agreement) is between Sourcewell, ĂDŝŶŶĞƐŽƚĂƐĞƌǀŝĐĞĐŽŽƉĞƌĂƟǀĞlocated at 202 12th Street Northeast, P .O. Box 219, Staples, MN 56479 (Sourcewell) and W>ŽĂĚĞƌŽƌƉŽƌĂƟŽŶ͕ 5778 W. Barstow Ave., Fresno, CA 93722 (Supplier).
Sourcewell ŝƐĂůŽĐĂůŐŽǀĞƌŶŵĞŶƚĂŶĚƐĞƌǀŝĐĞĐŽŽƉĞƌĂƟǀĞĐƌĞĂƚĞĚƵŶĚĞƌƚŚĞůĂǁƐŽĨƚŚĞ^ƚĂƚĞŽĨ DŝŶŶĞƐŽƚĂ;DŝŶŶĞƐŽƚĂ^ƚĂƚƵƚĞƐ^ĞĐƟŽŶϭϮϯ͘ϮϭͿŽīĞƌŝŶŐ a CŽŽƉĞƌĂƟǀĞPurchasing Program to eligible ƉĂƌƟĐŝƉĂƟŶŐŐŽǀĞƌŶŵĞŶƚĞŶƟƟĞƐ͘
hŶĚĞƌƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚĞŶƚĞƌĞĚǁŝƚŚ^ŽƵƌĐĞǁĞůů͕^ƵƉƉůŝĞƌǁŝůůƉƌŽǀŝĚĞ/ŶĐůƵĚĞĚ^ŽůƵƟŽŶƐƚŽ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐƚŚƌŽƵŐŚ^ŽƵƌĐĞǁĞůů͛ƐCŽŽƉĞƌĂƟǀĞPurchasing Program.
ƌƟĐůĞϭ͗
'ĞŶĞƌĂůdĞƌŵƐ
dŚĞ'ĞŶĞƌĂůd ĞƌŵƐŝŶƚŚŝƐƌƟĐůĞϭĐŽŶƚƌŽůƚŚĞŽƉĞƌĂƟŽŶŽĨƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚďĞƚǁĞĞŶ^ŽƵƌĐĞǁĞůů ĂŶĚ^ƵƉƉůŝĞƌĂŶĚĂƉƉůLJƚŽĂůůƚƌĂŶƐĂĐƟŽŶƐĞŶƚĞƌĞĚďLJ^ƵƉƉůŝĞƌĂŶĚWĂƌƟĐŝƉĂƟŶŐ ŶƟƟĞƐ͘^ƵďƐĞƋƵĞŶƚ
ƌƟĐůĞƐƚŽƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚĐŽŶƚƌŽůƚŚĞƌŝŐŚƚƐĂŶĚŽďůŝŐĂƟŽŶƐĚŝƌĞĐƚůLJďĞƚǁĞĞŶ^ŽƵƌĐĞǁĞůůĂŶĚ ^ƵƉƉůŝĞƌ;ƌƟĐůĞϮͿ͕ĂŶĚďĞƚǁĞĞŶ^ƵƉƉůŝĞƌĂŶĚWĂƌƟĐŝƉĂƟŶŐ ŶƟƚLJ;ƌƟĐůĞϯͿ͕ƌĞƐƉĞĐƟǀĞůLJ͘dŚĞƐĞƌƟĐůĞϭ
General TĞƌŵƐĐŽŶƚƌŽůŽǀĞƌĂŶLJĐŽŶŇŝĐƟŶŐƚĞƌŵƐ͘tŚĞƌĞƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚŝƐƐŝůĞŶƚŽŶĂŶLJƐƵďũĞĐƚ͕ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJĂŶĚ^ƵƉƉůŝĞƌƌĞƚĂŝŶƚŚĞĂďŝůŝƚLJƚŽŶĞŐŽƟĂƚĞŵƵƚƵĂůůLJĂĐĐĞƉƚĂďůĞƚĞƌŵƐ.
1) WƵƌƉŽƐĞ͘ Pursuant to Minnesota law, tŚĞ^ŽƵƌĐĞǁĞůůŽĂƌĚŽĨŝƌĞĐƚŽƌƐŚĂƐĂƵƚŚŽƌŝnjĞĚ ĂŽŽƉĞƌĂƟǀĞ Purchasing Program designed to provide PĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐǁŝƚŚĂĐĐĞƐƐƚŽĐŽŵƉĞƟƟǀĞůLJĂǁĂƌĚĞĚ
ĐŽŽƉĞƌĂƟǀĞƉƵƌĐŚĂƐŝŶŐagreements͘dŽĨĂĐŝůŝƚĂƚĞƚŚĞWƌŽŐƌĂŵ͕^ŽƵƌĐĞǁĞůůhas awarded Supplier this ĐŽŽƉĞƌĂƟǀĞƉƵƌĐŚĂƐŝŶŐDĂƐƚĞƌŐƌĞĞŵĞŶƚĨŽůůŽǁŝŶŐĂĐŽŵƉĞƟƟǀĞƉƌŽĐƵƌĞŵĞŶƚƉƌŽĐĞƐƐŝŶƚĞŶĚĞĚƚŽ ŵĞĞƚĐŽŵƉůŝĂŶĐĞƐƚĂŶĚĂƌĚƐŝŶĂĐĐŽƌĚĂŶĐĞǁŝƚŚDŝŶŶĞƐŽƚĂůĂǁĂŶĚƚŚĞƌĞƋƵŝƌĞŵĞŶƚƐĐŽŶƚĂŝŶĞĚ herein.
2) /ŶƚĞŶƚ͘ dŚĞŝŶƚĞŶƚŽĨƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚŝƐƚŽĚĞĮŶĞƚŚĞƌŽůĞƐŽĨ^ŽƵƌĐĞǁĞůů͕^ƵƉƉůŝĞƌ͕ĂŶĚ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJĂƐŝƚƌĞůĂƚĞƐƚŽ^ŽƵƌĐĞǁĞůů͛ƐŽŽƉĞƌĂƟǀĞWƵƌĐŚĂƐŝŶŐWƌŽŐƌĂŵ͘
3) WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJĐĐĞƐƐ͘ ^ŽƵƌĐĞǁĞůů͛ƐCŽŽƉĞƌĂƟǀĞPurchasing Program Master Agreements are ĂǀĂŝůĂďůĞƚŽĞůŝŐŝďůĞƉƵďůŝĐĂŐĞŶĐŝĞƐ;WĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐͿ. WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͛ƐĂƵƚŚŽƌŝƚLJƚŽĂĐĐĞƐƐ
^ŽƵƌĐĞǁĞůů͛ƐCŽŽƉĞƌĂƟǀĞPurchasing PƌŽŐƌĂŵŝƐĚĞƚĞƌŵŝŶĞĚƚŚƌŽƵŐŚƚŚĞůĂǁƐŽĨŝƚƐƌĞƐƉĞĐƟǀĞ ũƵƌŝƐĚŝĐƟŽŶ͘
4) ^ƵƉƉůŝĞƌĐĐĞƐƐ͘
dŚĞ/ŶĐůƵĚĞĚ^ŽůƵƟŽŶƐŽīĞƌĞĚƵŶĚĞƌƚŚŝƐŐƌĞĞŵĞŶƚŵĂLJďĞŵĂĚĞĂǀĂŝůĂďůĞƚŽĂŶLJ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͘^ƵƉƉůŝĞƌƵŶĚĞƌƐƚĂŶĚƐƚŚĂƚĂWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͛ƐƵƐĞŽĨƚŚŝƐŐƌĞĞŵĞŶƚŝƐĂƚƚŚĞ
WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͛ƐƐŽůĞĐŽŶǀĞŶŝĞŶĐĞ͘^ƵƉƉůŝĞƌǁŝůůĞĚƵĐĂƚĞŝƚƐƐĂůĞƐĂŶĚƐĞƌǀŝĐĞĨŽƌĐĞƐĂďŽƵƚ
784
050625-PBL
v052824 2
^ŽƵƌĐĞǁĞůůĞůŝŐŝďŝůŝƚLJƌĞƋƵŝƌĞŵĞŶƚƐĂŶĚƌĞƋƵŝƌĞĚĚŽĐƵŵĞŶƚĂƟŽŶ͘^ƵƉƉůŝĞƌǁŝůůďĞƌĞƐƉŽŶƐŝďůĞĨŽƌ ĞŶƐƵƌŝŶŐƐĂůĞƐĂƌĞǁŝƚŚWĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐ.
5) dĞƌŵ͘ dŚŝƐŐƌĞĞŵĞŶƚŝƐĞīĞĐƟǀĞƵƉŽŶƚŚĞĚĂƚĞŽĨƚŚĞĮŶĂůƐŝŐŶĂƚƵƌĞďĞůŽǁ͘dŚĞƚĞƌŵŽĨƚŚŝƐ ŐƌĞĞŵĞŶƚŝƐĨŽƵƌ;ϰͿLJĞĂƌƐĨƌŽŵƚŚĞĞīĞĐƟǀĞĚĂƚĞ͘dŚĞŐƌĞĞŵĞŶƚĞdžƉŝƌĞƐĂƚϭϭ͗ϱϵW ͘D͘ĞŶƚƌĂů Time on July 7, 2029, unless it is cancelled or extended ĂƐĚĞĮŶĞĚŝŶƚŚŝƐŐƌĞĞŵĞŶƚ͘
a)
džƚĞŶƐŝŽŶƐ͘ Sourcewell and Supplier may agree to up to three (3) ĂĚĚŝƟŽŶĂůŽŶĞ-year extensions ďĞLJŽŶĚƚŚĞŽƌŝŐŝŶĂůĨŽƵƌ-LJĞĂƌƚĞƌŵ͘dŚĞƚŽƚĂůƉŽƐƐŝďůĞůĞŶŐƚŚŽĨƚŚŝƐŐƌĞĞŵĞŶƚǁŝůůďĞƐĞǀĞŶ(7) LJĞĂƌƐĨƌŽŵƚŚĞĞīĞĐƟǀĞĚĂƚĞ͘
b)
džĐĞƉƟŽŶĂůŝƌĐƵŵƐƚĂŶĐĞƐ͘ ^ŽƵƌĐĞǁĞůůƌĞƚĂŝŶƐƚŚĞƌŝŐŚƚƚŽĐŽŶƐŝĚĞƌĂĚĚŝƟŽŶĂůĞdžƚĞŶƐŝŽŶƐĂƐ ƌĞƋƵŝƌĞĚƵŶĚĞƌĞdžĐĞƉƟŽŶĂůĐŝƌĐƵŵƐƚĂŶĐĞƐ͘
6) ^ƵƌǀŝǀĂůŽĨdĞƌŵƐ͘ EŽƚǁŝƚŚƐƚĂŶĚŝŶŐƚŚĞƚĞƌŵŝŶĂƟŽŶŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͕ƚŚĞŽďůŝŐĂƟŽŶƐŽĨƚŚŝƐ ŐƌĞĞŵĞŶƚǁŝůůĐŽŶƟŶƵĞƚŚƌŽƵŐŚƚŚĞƉĞƌĨŽƌŵĂŶĐĞƉĞƌŝŽĚŽĨĂŶLJƚƌĂŶƐĂĐƟŽŶĞŶƚĞƌĞĚbetween ^ƵƉƉůŝĞƌĂŶĚĂŶLJWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJďĞĨŽƌĞƚŚĞƚĞƌŵŝŶĂƟŽŶĚĂƚĞ͘
7) ^ĐŽƉĞ͘^ƵƉƉůŝĞƌŝƐĂǁĂƌĚĞĚĂDĂƐƚĞƌŐƌĞĞŵĞŶƚƚŽƉƌŽǀŝĚĞƚŚĞƐŽůƵƟŽŶƐŝĚĞŶƟĮĞĚŝŶRFP #050625 ƚŽWĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐ͘/Ŷ^ĐŽƉĞƐŽůƵƟŽŶƐŝŶĐůƵĚĞ͗
a. Asphalt recyclers and reclaimers, hot boxes;
b. WĂƚĐŚĞƌƐ͕ƐĞĂůĐŽĂƚĞƌƐ͕ũŽŝŶƚĂŶĚĐƌĂĐŬƐĞĂůĞƌƐ͕ĐƌĂĐŬƌŽƵƚĞƌƐ͕ŵĂƐƚŝĐĂŶĚĂĚŚĞƐŝǀĞŵĞůƚĞƌƐ͖ c. ŚŝƉƐƉƌĞĂĚĞƌƐ͕ĂƐƉŚĂůƚďƌŽŽŵƐ͕ĂŶĚƉĂǀĞŵĞŶƚŐƌŝŶĚŝŶŐŽƌŐƌŽŽǀŝŶŐĞƋƵŝƉŵĞŶƚ͖ĂŶĚ͕ d. WĂǀĞŵĞŶƚŵĂƌŬŝŶŐĂƉƉůŝĐĂƚŝŽŶĂŶĚƌĞŵŽǀĂůĞƋƵŝƉŵĞŶƚ͘
8) /ŶĐůƵĚĞĚ^ŽůƵƟŽŶƐ͘ ^ƵƉƉůŝĞƌ͛ƐWƌŽƉŽƐĂůƚŽƚŚĞĂďŽǀĞƌĞĨĞƌĞŶĐĞĚZ&Wis incorporated into this Master ŐƌĞĞŵĞŶƚ͘KŶůLJƚŚŽƐĞ^ŽůƵƟŽŶƐŝŶĐůƵĚĞĚǁŝƚŚŝŶ^ƵƉƉůŝĞƌ͛ƐWƌŽƉŽƐĂůĂŶĚǁŝƚŚŝŶ^ĐŽƉĞ;/ŶĐůƵĚĞĚ ^ŽůƵƟŽŶƐͿĂƌĞŝŶĐůƵĚĞĚǁŝƚŚŝŶƚŚĞŐƌĞĞŵĞŶƚĂŶĚŵĂLJďĞŽīĞƌĞĚƚŽWĂƌƟĐŝƉĂƟŶŐ ŶƟƟĞƐ.
9) /ŶĚĞĮŶŝƚĞYƵĂŶƟƚLJ͘ dŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚĚĞĮŶĞƐĂŶŝŶĚĞĮŶŝƚĞƋƵĂŶƟƚLJŽĨƐĂůĞƐƚŽĞůŝŐŝďůĞ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐ.
10) WƌŝĐŝŶŐ͘ WƌŝĐŝŶŐŝŶĨŽƌŵĂƟŽŶ;ŝŶĐůƵĚŝŶŐWƌŝĐŝŶŐĂŶĚĞůŝǀĞƌLJĂŶĚWƌŝĐŝŶŐ KīĞƌĞĚtĂďůĞƐͿĨŽƌĂůů/ŶĐůƵĚĞĚ
^ŽůƵƟŽŶƐǁŝƚŚŝŶ^ƵƉƉůŝĞƌ͛ƐWƌŽƉŽƐĂůŝƐŝŶĐŽƌƉŽƌĂƚĞĚŝŶƚŽƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚ͘
11) EŽƚƚŽ
džĐĞĞĚWƌŝĐŝŶŐ͘ Suppliers may not exceed the prices listed in the current Pricing List ŽŶĮůĞ with Sourcewell ǁŚĞŶŽīĞƌŝŶŐ/ŶĐůƵĚĞĚ^ŽůƵƟŽŶƐƚŽWĂƌƟĐŝƉĂƟŶŐ ŶƟƟĞƐ͘WĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐŵĂLJ
ƌĞƋƵĞƐƚĂĚũƵƐƚŵĞŶƚƐƚŽƉƌŝĐŝŶŐĚŝƌĞĐƚůLJĨƌŽŵ^ƵƉƉůŝĞƌĚƵƌŝŶŐƚŚĞŶĞŐŽƟĂƟŽŶĂŶĚĞdžĞĐƵƟŽŶŽĨĂŶLJ ƚƌĂŶƐĂĐƟŽŶ.
12) KƉĞŶDĂƌŬĞƚ͘ ^ƵƉƉůŝĞƌ͛ƐŽƉĞŶŵĂƌŬĞƚƉƌŝĐŝŶŐprocess is included within its Proposal.
13) ^ƵƉƉůŝĞƌZĞƉƌĞƐĞŶƚĂƟŽŶƐ͗
i) ŽŵƉůŝĂŶĐĞ͘ Supplier represents and warrants it will provide all Included ^ŽůƵƟŽŶƐ ƵŶĚĞƌƚŚŝƐŐƌĞĞŵĞŶƚŝŶĨƵůůĐŽŵƉůŝĂŶĐĞǁŝƚŚĂƉƉůŝĐĂďůĞĨĞĚĞƌĂů͕ƐƚĂƚĞ͕ĂŶĚůŽĐĂůůĂǁƐĂŶĚ ƌĞŐƵůĂƟŽŶƐ͘
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ii) >ŝĐĞŶƐĞƐ͘ ƐĂƉƉůŝĐĂďůĞ͕^ƵƉƉůŝĞƌǁŝůůŵĂŝŶƚĂŝŶĂǀĂůŝĚƐƚĂƚƵƐŽŶĂůůƌĞƋƵŝƌĞĚĨĞĚĞƌĂů͕ƐƚĂƚĞ͕ ĂŶĚůŽĐĂůůŝĐĞŶƐĞƐ͕ďŽŶĚƐ͕ĂŶĚƉĞƌŵŝƚƐƌĞƋƵŝƌĞĚĨŽƌƚŚĞŽƉĞƌĂƟŽŶŽĨ^ƵƉƉůŝĞƌ͛ƐďƵƐŝŶĞƐƐǁŝƚŚ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐ͘WĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐŵĂLJƌĞƋƵĞƐƚĂůůƌĞůĞǀĂŶƚĚŽĐƵŵĞŶƚĂƟŽŶĚŝƌĞĐƚůLJĨƌŽŵ Supplier.
iii) ^ƵƉƉůŝĞƌtĂƌƌĂŶƚƐ͘ Supplier warrants that all Included ^ŽůƵƟŽŶƐĨƵƌŶŝƐŚĞĚƵŶĚĞƌƚŚŝƐ ŐƌĞĞŵĞŶƚĂƌĞĨƌĞĞĨƌŽŵůŝĞŶƐĂŶĚĞŶĐƵŵďƌĂŶĐĞƐ͕ĂŶĚĂƌĞĨƌĞĞĨƌŽŵĚĞĨĞĐƚƐŝŶĚĞƐŝŐŶ͕ŵĂƚĞƌŝĂůƐ͕ ĂŶĚǁŽƌŬŵĂŶƐŚŝƉ͘/ŶĂĚĚŝƟŽŶ͕^ƵƉƉůŝĞƌǁĂƌƌĂŶƚƐƚŚĞ^ŽůƵƟŽŶƐĂƌĞƐƵŝƚĂďůĞĨŽƌĂŶĚǁŝůůƉĞƌĨŽƌŵ in accordance with the ordinary uƐĞĨŽƌǁŚŝĐŚƚŚĞLJĂƌĞŝŶƚĞŶĚĞĚ͘
14) ĂŶŬƌƵƉƚĐLJEŽƟĐĞƐ͘ ^ƵƉƉůŝĞƌĐĞƌƟĮĞƐĂŶĚǁĂƌƌĂŶƚƐŝƚŝƐŶŽƚĐƵƌƌĞŶƚůLJŝŶĂďĂŶŬƌƵƉƚĐLJƉƌŽĐĞĞĚŝŶŐ͘ ^ƵƉƉůŝĞƌŚĂƐĚŝƐĐůŽƐĞĚĂůůĐƵƌƌĞŶƚĂŶĚĐŽŵƉůĞƚĞĚďĂŶŬƌƵƉƚĐLJƉƌŽĐĞĞĚŝŶŐƐǁŝƚŚŝŶƚŚĞƉĂƐƚƐĞǀĞŶLJĞĂƌƐ ǁŝƚŚŝŶŝƚƐWƌŽƉŽƐĂů͘^ƵƉƉůŝĞƌŵƵƐƚƉƌŽǀŝĚĞŶŽƟĐĞŝŶǁƌŝƟŶŐƚŽ^ŽƵƌĐĞǁĞůůŝĨŝƚĞŶƚĞƌƐĂďĂŶŬƌƵƉƚĐLJ ƉƌŽĐĞĞĚŝŶŐĂƚĂŶLJƟŵĞĚƵƌŝŶŐƚŚĞƚĞƌŵŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͘
15) ĞďĂƌŵĞŶƚĂŶĚ^ƵƐƉĞŶƐŝŽŶ͘ ^ƵƉƉůŝĞƌĐĞƌƟĮĞƐĂŶĚǁĂƌƌĂŶƚƐƚŚĂƚŶĞŝƚŚĞƌŝƚŶŽƌŝƚƐƉƌŝŶĐŝƉĂůƐĂƌĞ ƉƌĞƐĞŶƚůLJĚĞďĂƌƌĞĚ͕ƐƵƐƉĞŶĚĞĚ͕ƉƌŽƉŽƐĞĚĨŽƌĚĞďĂƌŵĞŶƚ͕ĚĞĐůĂƌĞĚŝŶĞůŝŐŝďůĞ͕ŽƌǀŽůƵŶƚĂƌŝůLJĞdžĐůƵĚĞĚ ĨƌŽŵƉƌŽŐƌĂŵƐŽƉĞƌĂƚĞĚďLJƚŚĞ^ƚĂƚĞŽĨDŝŶŶĞƐŽƚĂ͕ƚŚĞhŶŝƚĞĚ^ƚĂƚĞƐĨĞĚĞƌĂůŐŽǀĞƌŶŵĞnt, or any WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͘^ƵƉƉůŝĞƌĐĞƌƟĮĞƐĂŶĚǁĂƌƌĂŶƚƐƚŚĂƚŶĞŝƚŚĞƌŝƚŶŽƌŝƚƐƉƌŝŶĐŝƉĂůƐŚĂǀĞďĞĞŶ ĐŽŶǀŝĐƚĞĚŽĨĂĐƌŝŵŝŶĂůŽīĞŶƐĞƌĞůĂƚĞĚƚŽƚŚĞƐƵďũĞĐƚŵĂƩĞƌŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͘^ƵƉƉůŝĞƌĨƵƌƚŚĞƌ warrants that it will pƌŽǀŝĚĞŝŵŵĞĚŝĂƚĞǁƌŝƩĞŶŶŽƟĐĞƚŽ^ŽƵƌĐĞǁĞůůŝĨƚŚŝƐĐĞƌƟĮĐĂƟŽŶĐŚĂŶŐĞƐĂƚ ĂŶLJƟŵĞĚƵƌŝŶŐƚŚĞƚĞƌŵŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͘
16) WƌŽǀŝƐŝŽŶƐĨŽƌŶŽŶ-hŶŝƚĞĚ^ƚĂƚĞƐĨĞĚĞƌĂůĞŶƟƚLJƉƌŽĐƵƌĞŵĞŶƚƐƵŶĚĞƌhŶŝƚĞĚ^ƚĂƚĞƐĨĞĚĞƌĂůĂǁĂƌĚƐ ŽƌŽƚŚĞƌĂǁĂƌĚƐ;ƉƉĞŶĚŝdžII ƚŽϮ͘&͘ZΑϮϬϬͿ͘ WĂƌƟĐŝƉĂƟŶŐ ŶƟƟĞƐƚŚĂƚƵƐĞhŶŝƚĞĚ^ƚĂƚĞƐĨĞĚĞƌĂů
ŐƌĂŶƚŽƌŽƚŚĞƌĨĞĚĞƌĂůĨƵŶĚŝŶŐƚŽƉƵƌĐŚĂƐĞƐŽůƵƟŽŶƐĨƌŽŵƚŚŝƐŐƌĞĞŵĞŶƚŵĂLJďĞƐƵďũĞĐƚƚŽ ĂĚĚŝƟŽŶĂůƌĞƋƵŝƌĞŵĞŶƚƐŝŶĐůƵĚŝŶŐƚŚĞƉƌŽĐƵƌĞŵĞŶƚƐƚĂŶĚĂƌĚƐŽĨƚŚĞhŶŝĨŽƌŵĚŵŝŶŝƐƚƌĂƟǀĞ ZĞƋƵŝƌĞŵĞŶƚƐ͕ŽƐƚWƌŝŶĐŝƉůĞƐĂŶĚƵĚŝƚZĞƋƵŝƌĞŵĞŶƚƐĨŽƌ&ĞĚĞƌĂůǁĂƌĚƐ͕Ϯ͘&͘Z͘ΑϮϬϬ͘ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐŵĂLJŚĂǀĞĂĚĚŝƟŽŶĂůƌĞƋƵŝƌĞŵĞŶƚƐďĂƐĞĚŽŶƐƉĞĐŝĮĐĨƵŶĚŝŶŐƐŽƵƌĐĞƚĞƌŵƐŽƌ ĐŽŶĚŝƟŽŶƐ͘tŝƚŚŝŶƚŚŝƐ^ĞĐƟŽŶ͕ĂůůƌĞĨĞƌĞŶĐĞƐƚŽ͞ĨĞĚĞƌĂů͟ƐŚŽƵůĚďĞŝŶƚĞƌƉƌĞƚĞĚƚŽŵĞĂŶƚŚĞhŶŝƚĞĚ ^ƚĂƚĞƐĨĞĚĞƌĂůŐŽǀĞƌŶŵĞŶƚ͘dŚĞĨŽůůŽǁŝŶŐůŝƐƚĂƉƉůŝĞƐǁŚĞŶĂWĂƌƟĐŝƉĂƟŶŐ ŶƟƚLJĂĐĐĞƐƐĞƐ^ƵƉƉůŝĞƌ͛Ɛ
Included ^ŽůƵƟŽŶƐǁŝƚŚhŶŝƚĞĚ^ƚĂƚĞƐĨĞĚĞƌĂůĨƵŶĚƐ͘
i)
Yh>
DW>KzD
EdKWWKZdhE/dz ͘
džĐĞƉƚĂƐŽƚŚĞƌǁŝƐĞƉƌŽǀŝĚĞĚƵŶĚĞƌϰϭ͘& ͘Z͘Α
60, all agreements ƚŚĂƚŵĞĞƚƚŚĞĚĞĮŶŝƟŽŶŽĨ͞ĨĞĚĞƌĂůůLJĂƐƐŝƐƚĞĚĐŽŶƐƚƌƵĐƟŽŶĐŽŶƚƌĂĐƚ͟ŝŶϰϭ ͘&͘Z͘ΑϲϬ-ϭ͘ϯŵƵƐƚŝŶĐůƵĚĞƚŚĞĞƋƵĂůŽƉƉŽƌƚƵŶŝƚLJĐůĂƵƐĞƉƌŽǀŝĚĞĚƵŶĚĞƌϰϭ͘&͘Z͘ΑϲϬ-1.4(b), in ĂĐĐŽƌĚĂŶĐĞǁŝƚŚ
džĞĐƵƟǀĞKƌĚĞƌϭϭϮϰϲ͕͞
ƋƵĂů
ŵƉůŽLJŵĞŶƚKƉƉŽƌƚƵ
ŶŝƚLJ͟;ϯϬ&ZϭϮ319, 12935,
ϯ͘&͘Z͘Α͕ϭϵϲϰ-ϭϵϲϱŽŵƉ͕͘Ɖ͘ϯϯϵͿ͕ĂƐĂŵĞŶĚĞĚďLJ
džĞĐƵƟǀĞKƌĚĞƌϭϭϯϳϱ͕͞ŵĞŶĚŝŶŐ
džĞĐƵƟǀĞKƌĚĞƌϭϭϮϰϲZĞůĂƟŶŐƚŽ
ƋƵĂů
ŵƉůŽLJŵĞŶƚKƉƉŽƌƚƵŶŝƚLJ͕͟ ĂŶĚŝŵƉůĞŵĞŶƟŶŐ
ƌĞŐƵůĂƟŽŶƐĂƚϰϭ͘&͘Z͘ΑϲϬ͕͞KĸĐĞŽĨ&ĞĚĞƌĂůŽŶƚƌĂĐƚŽŵƉůŝĂŶĐĞWƌŽŐƌĂŵƐ͕ ƋƵĂů
ŵƉůŽLJŵĞŶƚKƉƉŽƌƚƵŶŝƚLJ͕ĞƉĂƌƚŵĞŶƚŽĨ>ĂďŽƌ ͘͟dŚĞĞƋƵĂůŽƉƉŽƌƚƵŶŝƚLJĐůĂƵƐĞŝƐŝŶĐŽƌƉŽƌĂƚĞĚ ŚĞƌĞŝŶďLJƌĞĨĞƌĞŶĐĞ͘
ii) DAVIS-KEd ͕^D
E
;ϰϬh͘^͘͘Αϯϭϰϭ-ϯϭϰϴͿ͘ tŚĞŶƌĞƋƵŝƌĞĚďLJĨĞĚĞƌĂů
ƉƌŽŐƌĂŵůĞŐŝƐůĂƟŽŶ͕ĂůůƉƌŝŵĞĐŽŶƐƚƌƵĐƟŽŶĐŽŶƚƌĂĐƚƐŝŶĞdžĐĞƐƐŽĨΨϮ͕ϬϬϬĂǁĂƌĚĞĚďLJŶŽŶ-ĨĞĚĞƌĂů ĞŶƟƟĞƐŵƵƐƚŝŶĐůƵĚĞĂƉƌŽǀŝƐŝŽŶĨŽƌĐŽŵƉůŝĂŶĐĞǁŝƚŚƚŚĞĂǀŝƐ-ĂĐŽŶĐƚ;ϰϬh͘^͘͘Αϯϭϰϭ- 3144, and 3146-ϯϭϰϴͿĂƐƐƵƉƉůĞŵĞŶƚĞĚďLJĞƉĂƌƚŵĞŶƚŽĨ>ĂďŽƌƌĞŐƵůĂƟŽŶƐ;Ϯϵ͘&͘Z͘Αϱ͕ ͞>ĂďŽƌ^ƚĂŶĚĂƌĚƐWƌŽǀŝƐŝŽŶƐƉƉůŝĐĂďůĞƚŽŽŶƚƌĂĐƚƐŽǀĞƌŝŶŐ&ĞĚĞƌĂůůLJ&ŝŶĂŶĐĞĚĂŶĚƐƐŝƐƚĞĚ
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050625-PBL
v052824 4
ŽŶƐƚƌƵĐƟŽŶ͟Ϳ͘/ŶĂĐĐŽƌĚĂŶĐĞǁŝƚŚƚŚĞƐƚĂƚƵƚĞ͕ĐŽŶƚƌĂĐƚŽƌƐŵƵƐƚďĞƌĞƋƵŝƌĞĚƚŽƉĂLJǁĂŐĞƐƚŽ ůĂďŽƌĞƌƐĂŶĚŵĞĐŚĂŶŝĐƐĂƚĂƌĂƚĞŶŽƚůĞƐƐƚŚĂŶƚŚĞƉƌĞǀĂŝůŝŶŐǁĂŐĞƐƐƉĞĐŝĮĞĚŝŶĂǁĂŐĞ ĚĞƚĞƌŵŝŶĂƟŽŶŵĂĚĞďLJƚŚĞ^ĞĐƌĞƚĂƌLJŽĨ>ĂďŽƌ ͘/ŶĂĚĚŝƟŽŶ͕ĐŽŶƚƌĂĐƚŽƌƐŵƵƐƚ ďĞƌĞƋƵŝƌĞĚƚŽƉĂLJ ǁĂŐĞƐŶŽƚůĞƐƐƚŚĂŶŽŶĐĞĂǁĞĞŬ͘dŚĞŶŽŶ-ĨĞĚĞƌĂůĞŶƟƚLJŵƵƐƚƉůĂĐĞĂĐŽƉLJŽĨƚŚĞĐƵƌƌĞŶƚ ƉƌĞǀĂŝůŝŶŐǁĂŐĞĚĞƚĞƌŵŝŶĂƟŽŶŝƐƐƵĞĚďLJƚŚĞĞƉĂƌƚŵĞŶƚŽĨ>ĂďŽƌŝŶĞĂĐŚƐŽůŝĐŝƚĂƟŽŶ͘dŚĞ decision to award a contract or subcontract must be condiƟŽŶĞĚƵƉŽŶƚŚĞĂĐĐĞƉƚĂŶĐĞŽĨƚŚĞ ǁĂŐĞĚĞƚĞƌŵŝŶĂƟŽŶ͘dŚĞŶŽŶ-ĨĞĚĞƌĂůĞŶƟƚLJŵƵƐƚƌĞƉŽƌƚĂůůƐƵƐƉĞĐƚĞĚŽƌƌĞƉŽƌƚĞĚǀŝŽůĂƟŽŶƐƚŽ ƚŚĞĨĞĚĞƌĂůĂǁĂƌĚŝŶŐĂŐĞŶĐLJ͘dŚĞĐŽŶƚƌĂĐƚƐŵƵƐƚĂůƐŽŝŶĐůƵĚĞĂƉƌŽǀŝƐŝŽŶĨŽƌĐŽŵƉůŝĂŶĐĞǁŝƚŚƚŚĞ ŽƉĞůĂŶĚ͞ŶƟ-<ŝĐŬďĂĐŬ͟Đƚ;ϰϬh͘^͘͘ΑϯϭϰϱͿ͕ĂƐƐƵƉƉůĞŵĞŶƚĞĚďLJĞƉĂƌƚŵĞŶƚŽĨ>ĂďŽƌ ƌĞŐƵůĂƟŽŶƐ;Ϯϵ͘&͘Z͘Αϯ͕͞ŽŶƚƌĂĐƚŽƌƐĂŶĚ^ƵďĐŽŶƚƌĂĐƚŽƌƐŽŶWƵďůŝĐƵŝůĚŝŶŐŽƌWƵďůŝĐtŽƌŬ &ŝŶĂŶĐĞĚŝŶtŚŽůĞŽƌŝŶWĂƌƚďLJ>ŽĂŶƐŽƌ'ƌĂŶƚƐĨƌŽŵƚŚĞhŶŝƚĞĚ^ƚĂƚĞƐ͟Ϳ͘dŚĞĐƚƉƌŽǀŝĚĞƐƚŚĂƚ each conƚƌĂĐƚŽƌŽƌƐƵďƌĞĐŝƉŝĞŶƚŵƵƐƚďĞƉƌŽŚŝďŝƚĞĚĨƌŽŵŝŶĚƵĐŝŶŐ͕ďLJĂŶLJŵĞĂŶƐ͕ĂŶLJƉĞƌƐŽŶ ĞŵƉůŽLJĞĚŝŶƚŚĞĐŽŶƐƚƌƵĐƟŽŶ͕ĐŽŵƉůĞƟŽŶ͕ŽƌƌĞƉĂŝƌŽĨƉƵďůŝĐǁŽƌŬ͕ƚŽŐŝǀĞƵƉĂŶLJƉĂƌƚŽĨƚŚĞ ĐŽŵƉĞŶƐĂƟŽŶƚŽǁŚŝĐŚŚĞŽƌƐŚĞŝƐŽƚŚĞƌǁŝƐĞĞŶƟƚůĞĚ͘dŚĞŶŽŶ-ĨĞĚĞƌĂůĞŶƟƚLJmust report all ƐƵƐƉĞĐƚĞĚŽƌƌĞƉŽƌƚĞĚǀŝŽůĂƟŽŶƐƚŽƚŚĞĨĞĚĞƌĂůĂǁĂƌĚŝŶŐĂŐĞŶĐLJ͘^ƵƉƉůŝĞƌŵƵƐƚĐŽŵƉůLJǁŝƚŚĂůů ĂƉƉůŝĐĂďůĞĂǀŝƐ-Bacon Act provisions.
iii) KEdZdtKZ<,KhZ^E^&
dz^dEZ^d;ϰϬh͘^͘͘ΑϯϳϬϭ-ϯϳϬϴͿ͘
Where applicable, all contracts awarded by the non-ĨĞĚĞƌĂůĞŶƟƚLJŝŶĞdžĐĞƐƐŽĨΨϭϬϬ͕ϬϬϬƚŚĂƚ ŝŶǀŽůǀĞƚŚĞĞŵƉůŽLJŵĞŶƚŽĨŵĞĐŚĂŶŝĐƐŽƌůĂďŽƌĞƌƐŵƵƐƚŝŶĐůƵĚĞĂƉƌŽǀŝƐŝŽŶĨŽƌĐŽŵƉůŝĂŶĐĞǁŝƚŚ ϰϬh͘^͘͘ΑΑϯϳϬϮĂŶĚϯϳϬϰ͕ĂƐƐƵƉƉůĞŵĞŶƚĞĚďLJĞƉĂƌƚŵĞŶƚŽĨ>ĂďŽƌƌĞŐƵůĂƟŽŶƐ;Ϯϵ͘&͘Z͘ΑϱͿ͘ hŶĚĞƌϰϬh͘^͘͘ΑϯϳϬϮŽĨƚŚĞĐƚ͕ĞĂĐŚĐŽŶƚƌĂĐƚŽƌŵƵƐƚďĞƌĞƋƵŝƌĞĚƚŽĐŽŵƉƵƚĞƚŚĞǁĂŐĞƐŽĨ ĞǀĞƌLJŵĞĐŚĂŶŝĐĂŶĚůĂďŽƌĞƌŽŶƚŚĞďĂƐŝƐŽĨĂƐƚĂŶĚĂƌĚǁŽƌŬǁĞĞŬŽĨϰϬŚŽƵƌƐ͘tŽƌŬŝŶĞdžĐĞƐƐŽĨ ƚŚĞƐƚĂŶĚĂƌĚǁŽƌŬǁĞĞŬŝƐƉĞƌŵŝƐƐŝďůĞƉƌŽǀŝĚĞĚƚŚĂƚƚŚĞǁŽƌŬĞƌŝƐĐŽŵƉĞŶƐĂƚĞĚĂƚĂƌĂƚĞŽĨŶŽƚ ůĞƐƐƚŚĂŶŽŶĞĂŶĚĂŚĂůĨƟŵĞƐƚŚĞďĂƐŝĐƌĂƚĞŽĨƉĂLJĨŽƌĂůůŚŽƵƌƐǁŽƌŬĞĚŝŶĞdžĐĞƐƐŽĨϰϬŚŽƵƌƐŝŶ ƚŚĞǁŽƌŬǁĞĞŬ͘dŚĞƌĞƋƵŝƌĞŵĞŶƚƐŽĨϰϬh͘^͘͘ΑϯϳϬϰĂƌĞĂƉƉůŝĐĂďůĞƚŽĐŽŶƐƚƌƵĐƟŽŶǁŽƌŬĂŶĚ ƉƌŽǀŝĚĞƚŚĂƚŶŽůĂďŽƌĞƌŽƌŵĞĐŚĂŶŝĐŵƵƐƚďĞƌĞƋƵŝƌĞĚƚŽǁŽƌŬŝŶƐƵƌƌŽƵŶĚŝŶŐƐŽƌƵŶĚĞƌǁŽƌŬŝŶŐ ĐŽŶĚŝƟŽŶƐǁŚŝĐŚĂƌĞƵŶƐĂŶŝƚĂƌLJ͕ŚĂnjĂƌĚŽƵƐŽƌĚĂŶŐĞƌŽƵƐ͘dŚĞƐĞƌĞƋƵŝƌĞŵĞŶƚƐĚŽŶŽƚĂƉƉůLJƚŽ the purchases ŽĨƐƵƉƉůŝĞƐ͕ŵĂƚĞƌŝĂůƐ͕ŽƌĂƌƟĐůĞƐŽƌĚŝŶĂƌŝůLJĂǀĂŝůĂďůĞŽŶƚŚĞŽƉĞŶŵĂƌŬĞƚ͕Žƌ ĐŽŶƚƌĂĐƚƐĨŽƌƚƌĂŶƐƉŽƌƚĂƟŽŶŽƌƚƌĂŶƐŵŝƐƐŝŽŶŽĨŝŶƚĞůůŝŐĞŶĐĞ͘dŚŝƐƉƌŽǀŝƐŝŽŶŝƐŚĞƌĞďLJŝŶĐŽƌƉŽƌĂƚĞĚ ďLJƌĞĨĞƌĞŶĐĞŝŶƚŽƚŚŝƐŐƌĞĞŵĞŶƚ͘^ƵƉƉůŝĞƌĐĞƌƟĮĞƐƚŚĂƚĚƵƌŝŶŐƚŚĞƚĞƌŵŽĨĂŶĂǁĂƌĚĨŽƌĂůů ŐƌĞĞŵĞŶƚƐďLJ^ŽƵƌĐĞǁĞůůƌĞƐƵůƟŶŐĨƌŽŵƚŚŝƐƉƌŽĐƵƌĞŵĞŶƚƉƌŽĐĞƐƐ͕^ƵƉƉůŝĞƌŵƵƐƚĐŽŵƉůLJǁŝƚŚ ĂƉƉůŝĐĂďůĞƌĞƋƵŝƌĞŵĞŶƚƐĂƐƌĞĨĞƌĞŶĐĞĚĂďŽǀĞ͘
iv) Z/',d^dK/Es
Ed/KE^D
hE
ZKEdZdKZ'Z
D
Ed͘ /ĨƚŚĞĨĞĚĞƌĂů
ĂǁĂƌĚŵĞĞƚƐƚŚĞĚĞĮŶŝƟŽŶŽĨ͞ĨƵŶĚŝŶŐĂŐƌĞĞŵĞŶƚ͟ƵŶĚĞƌϯϳ͘&͘Z͘ΑϰϬϭ͘Ϯ;ĂͿĂŶĚƚŚĞƌĞĐŝƉŝĞŶƚ ŽƌƐƵďƌĞĐŝƉŝĞŶƚǁŝƐŚĞƐƚŽĞŶƚĞƌŝŶƚŽĂĐŽŶƚƌĂĐƚǁŝƚŚĂƐŵĂůůďƵƐŝŶĞƐƐĮƌŵŽƌŶŽŶƉƌŽĮƚ ŽƌŐĂŶŝnjĂƟŽŶƌĞŐĂƌĚŝŶŐƚŚĞƐƵďƐƟƚƵƟŽŶŽĨƉĂƌƟĞƐ͕ĂƐƐŝŐŶŵĞŶƚŽƌƉĞƌĨŽƌŵĂŶĐĞŽĨĞdžƉĞƌŝŵĞŶƚĂů͕ ĚĞǀĞůŽƉŵĞŶƚĂů͕ŽƌƌĞƐĞĂƌĐŚǁŽƌŬƵŶĚĞƌƚŚĂƚ͞ĨƵŶĚŝŶŐĂŐƌĞĞŵĞŶƚ͕͟ƚŚĞƌĞĐŝƉŝĞŶƚŽƌƐƵďƌĞĐŝƉŝĞŶƚ ŵƵƐƚĐŽŵƉůLJǁŝƚŚƚŚĞƌĞƋƵŝƌĞŵĞŶƚƐŽĨϯϳ͘&͘Z͘ΑϰϬϭ͕͞ZŝŐŚƚƐƚŽ/ŶǀĞŶƟŽŶƐDĂĚĞďLJEŽŶƉƌŽĮƚ KƌŐĂŶŝnjĂƟŽŶƐĂŶĚ^ŵĂůůƵƐŝŶĞƐƐ&ŝƌŵƐhŶĚĞƌ'ŽǀĞƌŶŵĞŶƚ'ƌĂŶƚƐ͕ŽŶƚƌĂĐƚƐĂŶĚŽŽƉĞƌĂƟǀĞ ŐƌĞĞŵĞŶƚƐ͕͟ĂŶĚĂŶLJŝŵƉůĞŵĞŶƟŶŐƌĞŐƵůĂƟŽŶƐŝƐƐƵĞĚďLJƚŚĞĂǁĂƌĚŝŶŐĂŐĞŶĐLJ͘^ƵƉƉůŝĞƌ ĐĞƌƟĮĞƐƚŚĂƚĚƵƌŝŶŐƚŚĞƚĞƌŵŽĨĂŶĂǁĂƌĚĨŽƌĂůůŐƌĞĞŵĞŶƚƐďLJ ^ŽƵƌĐĞǁĞůůƌĞƐƵůƟŶŐĨƌŽŵƚŚŝƐ
ƉƌŽĐƵƌĞŵĞŶƚƉƌŽĐĞƐƐ͕^ƵƉƉůŝĞƌŵƵƐƚĐŽŵƉůLJǁŝƚŚĂƉƉůŝĐĂďůĞƌĞƋƵŝƌĞŵĞŶƚƐĂƐƌĞĨĞƌĞŶĐĞĚĂďŽǀĞ͘
v) >
E/Zd;ϰϮh͘^͘͘ΑϳϰϬϭ-ϳϲϳϭY͘ͿEd,
&
Z>td
ZWK>>hd/KE
KEdZK>d;ϯϯh͘^͘͘ΑϭϮϱϭ-ϭϯϴϳͿ͘ ŽŶƚƌĂĐƚƐĂŶĚƐƵďŐƌĂŶƚƐŽĨĂŵŽƵŶƚƐŝŶĞdžĐĞƐƐŽĨ ΨϭϱϬ͕ϬϬϬƌĞƋƵŝƌĞƚŚĞŶŽŶ-ĨĞĚĞƌĂůĂǁĂƌĚƚŽĂŐƌĞĞƚŽĐŽŵƉůLJǁŝƚŚĂůůĂƉƉůŝĐĂďůĞƐƚĂŶĚĂƌĚƐ͕ŽƌĚĞƌƐ
787
050625-PBL
v052824 5
ŽƌƌĞŐƵůĂƟŽŶƐŝƐƐƵĞĚƉƵƌƐƵĂŶƚƚŽƚŚĞůĞĂŶŝƌĐƚ;ϰϮh͘^͘͘ΑϳϰϬϭ- ϳϲϳϭƋͿĂŶĚƚŚĞ&ĞĚĞƌĂů tĂƚĞƌWŽůůƵƟŽŶŽŶƚƌŽůĐƚĂƐĂŵĞŶĚĞĚ;ϯϯh͘^͘͘ΑϭϮϱϭ- ϭϯϴϳͿ͘sŝŽůĂƟŽŶƐŵƵƐƚďĞƌĞƉŽƌƚĞĚƚŽ ƚŚĞ&ĞĚĞƌĂůĂǁĂƌĚŝŶŐĂŐĞŶĐLJĂŶĚƚŚĞZĞŐŝŽŶĂůKĸĐĞŽĨƚŚĞ ŶǀŝƌŽŶŵĞŶƚĂůWƌŽƚĞĐƟŽŶŐĞŶĐLJ
;
WͿ͘^ƵƉƉůŝĞƌĐĞƌƟĮĞƐƚŚĂƚĚƵƌŝŶŐƚŚĞƚĞƌŵŽĨƚŚŝƐŐƌĞĞŵĞŶƚŝƚǁŝůůĐŽŵƉůLJǁŝƚŚĂƉƉůŝĐĂďůĞ ƌĞƋƵŝƌĞŵĞŶƚƐĂƐƌĞĨĞƌĞŶĐĞĚĂďŽǀĞ͘
vi)
ZD
EdE^h^W
E^/KE;
y
hd/s
KZ
Z^ϭϮϱϰϵEϭϮϲϴϵͿ͘ A contract
ĂǁĂƌĚ;ƐĞĞϮ͘&͘Z͘ΑϭϴϬ͘ϮϮϬͿŵƵƐƚŶŽƚďĞŵĂĚĞƚŽƉĂƌƟĞƐůŝƐƚĞĚŽŶƚŚĞŐŽǀĞƌŶŵĞŶƚǁŝĚĞ ĞdžĐůƵƐŝŽŶƐŝŶƚŚĞ^LJƐƚĞŵĨŽƌǁĂƌĚDĂŶĂŐĞŵĞŶƚ;^DͿ͕ŝŶĂĐĐŽƌĚĂŶĐĞǁŝƚŚƚŚĞKDŐƵŝĚĞůŝŶĞƐ ĂƚϮ͘&͘Z͘ΑϭϴϬƚŚĂƚŝŵƉůĞŵĞŶƚ
džĞĐƵƟǀĞKƌĚĞƌƐϭϮϱϰϵ;ϯ͘&͘Z͘ΑϭϵϴϲŽŵƉ͕͘Ɖ͘ϭϴϵͿĂŶĚ ϭϮϲϴϵ;ϯ͘&͘Z͘ΑϭϵϴϵŽŵƉ͕͘Ɖ͘ϮϯϱͿ͕͞ĞďĂƌŵĞŶƚĂŶĚ^ƵƐƉĞŶƐŝŽŶ͘͟^D džĐůƵƐŝŽŶƐĐŽŶƚĂŝŶƐ
ƚŚĞŶĂŵĞƐŽĨƉĂƌƟĞƐĚĞďĂƌƌĞĚ͕ƐƵƐƉĞŶĚĞĚ͕ŽƌŽƚŚĞƌǁŝƐĞĞdžĐůƵĚĞĚďLJĂŐĞŶĐŝĞƐ͕ĂƐǁĞůůĂƐƉĂƌƟĞƐ ĚĞĐůĂƌĞĚŝŶĞůŝŐŝďůĞƵŶĚĞƌƐƚĂƚƵƚŽƌLJŽƌƌĞŐƵůĂƚŽƌLJĂƵƚŚŽƌŝƚLJŽƚŚĞƌƚŚĂŶ džĞĐƵƟǀĞKƌĚĞƌϭϮϱϰϵ͘
^ƵƉƉůŝĞƌĐĞƌƟĮĞƐƚŚĂƚŶĞŝƚŚĞƌŝƚŶŽƌŝƚƐƉƌŝŶĐŝƉĂůƐĂƌĞƉƌĞƐĞŶƚůLJĚĞďĂƌƌĞĚ͕ƐƵƐƉĞŶĚĞĚ͕ƉƌŽƉŽƐĞĚ ĨŽƌĚĞďĂƌŵĞŶƚ͕ĚĞĐůĂƌĞĚŝŶĞůŝŐŝďůĞ͕ŽƌǀŽůƵŶƚĂƌŝůLJĞdžĐůƵĚĞĚĨƌŽŵƉĂƌƟĐŝƉĂƟŽŶďLJĂŶLJĨĞĚĞƌĂů department or agency.
vii) BYRD ANTI->Kz/E'D
ED
Ed ͕^D
E
;ϯϭh͘^͘͘ΑϭϯϱϮͿ͘ Suppliers must
ĮůĞĂŶLJƌĞƋƵŝƌĞĚĐĞƌƟĮĐĂƟŽŶƐ͘^ƵƉƉůŝĞƌƐŵƵƐƚŶŽƚŚĂǀĞƵƐĞĚĨĞĚĞƌĂůĂƉƉƌŽƉƌŝĂƚĞĚĨƵŶĚƐƚŽƉĂLJ ĂŶLJƉĞƌƐŽŶŽƌŽƌŐĂŶŝnjĂƟŽŶĨŽƌŝŶŇƵĞŶĐŝŶŐŽƌĂƩĞŵƉƟŶŐƚŽŝŶŇƵĞŶĐĞĂŶŽĸĐĞƌŽƌĞŵƉůŽLJĞĞŽĨ ĂŶLJĂŐĞŶĐLJ͕ĂŵĞŵďĞƌŽĨŽŶŐƌĞƐƐ͕ŽĸĐĞƌŽƌĞŵƉůŽLJĞĞŽĨŽŶŐƌĞƐƐ͕ŽƌĂŶĞŵƉůŽLJĞĞŽĨĂ ŵĞŵďĞƌŽĨŽŶŐƌĞƐƐŝŶĐŽŶŶĞĐƟŽŶǁŝƚŚŽďƚĂŝŶŝŶŐĂŶLJĨĞĚĞƌĂůĐŽŶƚƌĂĐƚ͕ŐƌĂŶƚ͕ŽƌĂŶLJŽƚŚĞƌ ĂǁĂƌĚĐŽǀĞƌĞĚďLJϯϭh͘^͘͘ΑϭϯϱϮ͘^ƵƉƉůŝĞƌƐŵƵƐƚĚŝƐĐůŽƐĞĂŶLJůŽďďLJŝŶŐǁŝƚŚŶŽŶ-ĨĞĚĞƌĂůĨƵŶĚƐ ƚŚĂƚƚĂŬĞƐƉůĂĐĞŝŶĐŽŶŶĞĐƟŽŶǁŝƚŚŽďƚĂŝŶŝŶŐĂŶLJĨĞĚĞƌĂůĂǁĂƌĚ͘^ƵĐŚĚŝƐĐůŽƐƵƌĞƐĂƌĞĨŽƌǁĂƌĚĞĚ ĨƌŽŵƟĞƌƚŽƟĞƌƵƉƚŽƚŚĞŶŽŶ-ĨĞĚĞƌĂůĂǁĂƌĚ͘^ƵƉƉůŝĞƌƐŵƵƐƚĮůĞĂůůĐĞƌƟĮĐĂƟŽŶƐĂŶĚĚŝƐĐůŽƐƵƌĞƐ ƌĞƋƵŝƌĞĚďLJ͕ĂŶĚŽƚŚĞƌǁŝƐĞĐŽŵƉůLJǁŝƚŚ͕ƚŚĞLJƌĚŶƟ->ŽďďLJŝŶŐŵĞŶĚŵĞŶƚ;ϯϭh͘^͘͘Αϭϯϱ2).
viii) Z
KZZ
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Ed^͘To the extent applicable, Supplier must comply
ǁŝƚŚƚŚĞƌĞĐŽƌĚƌĞƚĞŶƟŽŶƌĞƋƵŝƌĞŵĞŶƚƐĚĞƚĂŝůĞĚŝŶϮ͘&͘Z͘ΑϮϬϬ͘ϯϯϯ͘dŚĞ^ƵƉƉůŝĞƌĨƵƌƚŚĞƌ ĐĞƌƟĮĞƐƚŚĂƚŝƚǁŝůůƌĞƚĂŝŶĂůůƌĞĐŽƌĚƐĂƐƌĞƋƵŝƌĞĚďLJϮ͘&͘Z͘ΑϮϬϬ͘ϯϯϯĨŽƌĂƉĞƌŝŽĚŽĨϯLJĞĂƌƐĂŌĞƌ grantees or ƐƵďŐƌĂŶƚĞĞƐƐƵďŵŝƚĮŶĂůĞdžƉĞŶĚŝƚƵƌĞƌĞƉŽƌƚƐŽƌƋƵĂƌƚĞƌůLJŽƌĂŶŶƵĂůĮŶĂŶĐŝĂů ƌĞƉŽƌƚƐ͕ĂƐĂƉƉůŝĐĂďůĞ͕ĂŶĚĂůůŽƚŚĞƌƉĞŶĚŝŶŐŵĂƩĞƌƐĂƌĞĐůŽƐĞĚ͘
ix)
E
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^ƵƉƉůŝĞƌŵƵƐƚĐŽŵƉůLJǁŝƚŚƚŚĞŵĂŶĚĂƚŽƌLJƐƚĂŶĚĂƌĚƐĂŶĚƉŽůŝĐŝĞƐƌĞůĂƟŶŐƚŽĞŶĞƌŐLJĞĸĐŝĞŶĐLJ ǁŚŝĐŚĂƌĞĐŽŶƚĂŝŶĞĚŝŶƚŚĞƐƚĂƚĞĞŶĞƌŐLJĐŽŶƐĞƌǀĂƟŽŶƉůĂŶŝƐƐƵĞĚŝŶĐŽŵƉůŝĂŶĐĞǁŝƚŚƚŚĞ ŶĞƌŐLJ
WŽůŝĐLJĂŶĚŽŶƐĞƌǀĂƟŽŶĐƚ͘
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Z/EWZKs/^/KE^KDW>/E
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ĐŽŵƉůLJǁŝƚŚĂůůĂƉƉůŝĐĂďůĞƉƌŽǀŝƐŝŽŶƐŽĨƚŚĞƵLJŵĞƌŝĐĂŶĐƚ͘WƵƌĐŚĂƐĞƐŵĂĚĞŝŶĂĐĐŽƌĚĂŶĐĞ ǁŝƚŚƚŚĞƵLJŵĞƌŝĐĂŶĐƚŵƵƐƚĨŽůůŽǁƚŚĞĂƉƉůŝĐĂďůĞƉƌŽĐƵƌĞŵĞŶƚƌƵůĞƐĐĂůůŝŶŐĨŽƌĨƌĞĞĂŶĚ ŽƉĞŶĐŽŵƉĞƟƟŽŶ͘
xi)
^^dKZ
KZ^;Ϯ͘&͘Z͘ΑϮϬϬ͘ϯϯϲͿ͘ ^ƵƉƉůŝĞƌĂŐƌĞĞƐƚŚĂƚĚƵůLJĂƵƚŚŽƌŝnjĞĚ ƌĞƉƌĞƐĞŶƚĂƟǀĞƐŽĨĂĨĞĚĞƌĂůĂŐĞŶĐLJŵƵƐƚŚĂǀĞĂĐĐĞƐƐƚŽĂŶLJŬƐ͕ĚŽĐƵŵĞŶƚƐ͕ƉĂƉĞƌƐĂŶĚ ƌĞĐŽƌĚƐŽĨ^ƵƉƉůŝĞƌƚŚĂƚĂƌĞĚŝƌĞĐƚůLJƉĞƌƟŶĞŶƚƚŽ^ƵƉƉůŝĞƌ͛ƐĚŝƐĐŚĂƌŐĞŽĨŝƚƐŽďůŝŐĂƟŽŶƐƵŶĚĞƌƚŚŝƐ ŐƌĞĞŵĞŶƚĨŽƌƚŚĞƉƵƌƉŽƐĞŽĨŵĂŬŝŶŐĂƵĚŝƚƐ͕ĞdžĂŵŝŶĂƟŽŶƐ͕ĞdžĐĞƌƉƚƐ͕ĂŶĚƚƌĂŶƐĐƌŝƉƟŽŶƐ͘dŚĞ
788
050625-PBL
v052824 6
ƌŝŐŚƚĂůƐŽŝŶĐůƵĚĞƐƟŵĞůLJĂŶĚƌĞĂƐŽŶĂďůĞĂĐĐĞƐƐƚŽ^ƵƉƉůŝĞƌ͛ƐƉĞƌƐŽŶŶĞůĨŽƌƚŚĞƉƵƌƉŽƐĞŽĨ ŝŶƚĞƌǀŝĞǁĂŶĚĚŝƐĐƵƐƐŝŽŶƌĞůĂƟŶŐƚŽƐƵĐŚĚŽĐƵŵĞŶƚƐ͘
xii) WZKhZ
D
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Ks
Z
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Z/>^;Ϯ͘&͘Z͘ΑϮϬϬ͘ϯϮϮͿ͘A non-ĨĞĚĞƌĂůĞŶƟƚLJ
ƚŚĂƚŝƐĂƐƚĂƚĞĂŐĞŶĐLJŽƌĂŐĞŶĐLJŽĨĂƉŽůŝƟĐĂůƐƵďĚŝǀŝƐŝŽŶŽĨĂƐƚĂƚĞĂŶĚŝƚƐĐŽŶƚƌĂĐƚŽƌƐŵƵƐƚ ĐŽŵƉůLJǁŝƚŚ^ĞĐƟŽŶϲϬϬϮŽĨƚŚĞ^ŽůŝĚtĂƐƚĞŝƐƉŽƐĂůĐƚ͕ĂƐĂŵĞŶĚĞĚďLJƚŚĞZĞƐŽƵƌĐĞ ŽŶƐĞƌǀĂƟŽŶĂŶĚZĞĐŽǀĞƌLJĐƚ͘dŚĞƌĞƋƵŝƌĞŵĞŶƚƐŽĨ^ĞĐƟŽŶϲϬϬϮŝŶĐůƵĚĞƉƌŽĐƵƌŝŶŐŽŶůLJŝƚĞŵƐ ĚĞƐŝŐŶĂƚĞĚŝŶŐƵŝĚĞůŝŶĞƐŽĨƚŚĞ
ŶǀŝƌŽŶŵĞŶƚĂůWƌŽƚĞĐƟŽŶŐĞŶĐLJ;
WͿĂƚϰϬ͘&͘Z͘ΑϮϰϳƚŚĂƚ
ĐŽŶƚĂŝŶƚŚĞŚŝŐŚĞƐƚƉĞƌĐĞŶƚĂŐĞŽĨƌĞĐŽǀĞƌĞĚŵĂƚĞƌŝĂůƐƉƌĂĐƟĐĂďůĞ͕ consistent with maintaining a ƐĂƟƐĨĂĐƚŽƌLJůĞǀĞůŽĨĐŽŵƉĞƟƟŽŶ͕ǁŚĞƌĞƚŚĞƉƵƌĐŚĂƐĞƉƌŝĐĞŽĨƚŚĞŝƚĞŵĞdžĐĞĞĚƐΨϭϬ͕ϬϬϬŽƌƚŚĞ ǀĂůƵĞŽĨƚŚĞƋƵĂŶƟƚLJĂĐƋƵŝƌĞĚĚƵƌŝŶŐƚŚĞƉƌĞĐĞĚŝŶŐĮƐĐĂůLJĞĂƌĞdžĐĞĞĚĞĚΨϭϬ͕ϬϬϬ͖ƉƌŽĐƵƌŝŶŐ solid waste management services in a mĂŶŶĞƌƚŚĂƚŵĂdžŝŵŝnjĞƐĞŶĞƌŐLJĂŶĚƌĞƐŽƵƌĐĞƌĞĐŽǀĞƌLJ͖ ĂŶĚĞƐƚĂďůŝƐŚŝŶŐĂŶĂĸƌŵĂƟǀĞƉƌŽĐƵƌĞŵĞŶƚƉƌŽŐƌĂŵĨŽƌƉƌŽĐƵƌĞŵĞŶƚŽĨƌĞĐŽǀĞƌĞĚŵĂƚĞƌŝĂůƐ ŝĚĞŶƟĮĞĚŝŶƚŚĞ
WŐƵŝĚĞůŝŶĞƐ͘
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>;^Ϳ͕>K'K^͕E&>'^͘ The Supplier cannot use the seal(s), logos, crests, ŽƌƌĞƉƌŽĚƵĐƟŽŶƐŽĨŇĂŐƐŽƌůŝŬĞŶĞƐƐĞƐŽĨ&ĞĚĞƌĂůĂŐĞŶĐLJŽĸĐŝĂůƐǁŝƚŚŽƵƚƐƉĞĐŝĮĐƉƌĞ-approval.
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ƚŽƚŚŝƐŐƌĞĞŵĞŶƚŽƌĂŶLJƉƵƌĐŚĂƐĞďLJĂWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJĂŶĚŝƐŶŽƚƐƵďũĞĐƚƚŽĂŶLJŽďůŝŐĂƟŽŶƐ
ŽƌůŝĂďŝůŝƟĞƐƚŽƚŚĞWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͕^ƵƉƉůŝĞƌ͕ŽƌĂŶLJŽƚŚĞƌƉĂƌƚLJƉĞƌƚĂŝŶŝŶŐƚŽĂŶLJŵĂƩĞƌ ƌĞƐƵůƟŶŐĨƌŽŵƚŚĞŐƌĞĞŵĞŶƚŽƌĂŶLJƉƵƌĐŚĂƐĞďLJĂŶĂƵƚŚŽƌŝnjĞĚƵƐĞƌ͘
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ŶƟƚLJ͘
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džĂŵƉůĞƐŽĨƌĞůĞǀĂŶƚĚĞďƚŝŶĐůƵĚĞĚĞůŝŶƋƵĞŶƚƉĂLJƌŽůůĂŶĚŽƚŚĞƌƚĂdžĞƐ͕ĂƵĚŝƚ ĚŝƐĂůůŽǁĂŶĐĞ͕ĂŶĚďĞŶĞĮƚŽǀĞƌƉĂLJŵĞŶƚƐ͘
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ŶƟƚLJĂƐƐŽŽŶĂƐƉŽƐƐŝďůĞŝĨƚŚŝƐŐƌĞĞŵĞŶƚŽƌĂŶLJĂƐƉĞĐƚƌĞůĂƚĞĚ ƚŽƚŚĞĂŶƟĐŝƉĂƚĞĚǁŽƌŬƵŶĚĞƌƚŚŝƐŐƌĞĞŵĞŶƚƌĂŝƐĞƐĂŶĂĐƚƵĂůŽƌƉŽƚĞŶƟĂůĐŽŶŇŝĐƚŽĨŝŶƚĞƌĞƐƚ(as ĚĞƐĐƌŝďĞĚŝŶϮ͘&͘Z͘WĂƌƚϮϬϬͿ͘dŚĞ^ƵƉƉůŝĞƌŵƵƐƚĞdžƉůĂŝŶƚŚĞĂĐƚƵĂůŽƌƉŽƚĞŶƟĂůĐŽŶŇŝĐƚŝŶ ǁƌŝƟŶŐŝŶƐƵĸĐŝĞŶƚĚĞƚĂŝůƐŽƚŚĂƚƚŚĞh͘^͘KĸĐĞŽĨ'ĞŶĞƌĂů^ĞƌǀŝĐĞƐ͕^ŽƵƌĐĞǁĞůů͕ĂŶĚ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJĂƌĞĂďůĞƚŽĂƐƐĞƐƐƚŚĞĂĐƚƵĂůŽƌƉŽƚĞŶƟĂůĐŽŶŇŝĐƚ͖ĂŶĚƉƌŽǀŝĚĞĂŶLJĂĚĚŝƟŽŶĂů ŝŶĨŽƌŵĂƟŽŶĂƐŶĞĐĞƐƐĂƌLJŽƌƌĞƋƵĞƐƚĞĚ͘
xviii) h͘^͘
y
hd/s
KZ
ZϭϯϮϮϰ͘ The Supplier, and its subcontractors, must comply with h͘^͘
džĞĐƵƟǀĞKƌĚĞƌϭϯϮϮϰĂŶĚh͘^͘>ĂǁƐƚŚĂƚƉƌŽŚŝďŝƚƚƌĂŶƐĂĐƟŽŶƐǁŝƚŚĂŶĚƉƌŽǀŝƐŝŽŶŽĨ ƌĞƐŽƵƌĐĞƐĂŶĚƐƵƉƉŽƌƚƚŽŝŶĚŝǀŝĚƵĂůƐĂŶĚŽƌŐĂŶŝnjĂƟŽŶƐĂƐƐŽĐŝĂƚĞĚǁŝƚŚƚĞƌƌŽƌŝƐŵ͘
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Zd/Ed
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K^hZs
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789
050625-PBL
v052824 7
xx) KD
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ĐĞƌƟĮĞƐƚŚĂƚĚƵƌŝŶŐƚŚĞƚĞƌŵŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͕^ƵƉƉůŝĞƌǁŝůůĐŽŵƉůLJǁŝƚŚĂƉƉůŝĐĂďůĞ ƌĞƋƵŝƌĞŵĞŶƚƐŽĨϮ͘&͘Z͘ΑϮϬϬ͘ϯϮϮ͘
ƌƟĐůĞϮ͗
^ŽƵƌĐĞǁĞůůĂŶĚ^ƵƉƉůŝĞƌKďůŝŐĂƟŽŶƐ
dŚĞd ĞƌŵƐŝŶƚŚŝƐƌƟĐůĞϮƌĞůĂƚĞƐƉĞĐŝĮĐĂůůLJƚŽ^ŽƵƌĐĞǁĞůůĂŶĚŝƚƐĂĚŵŝŶŝƐƚƌĂƟŽŶŽĨƚŚŝƐDĂƐƚĞƌ ŐƌĞĞŵĞŶƚǁŝƚŚ^ƵƉƉůŝĞƌĂŶĚ^ƵƉƉůŝĞƌ͛ƐŽďůŝŐĂƟŽŶƐƚŚĞƌĞƵŶĚĞƌ ͘
1) ƵƚŚŽƌŝnjĞĚ^ĞůůĞƌƐ͘^ƵƉƉůŝĞƌŵƵƐƚƉƌŽǀŝĚĞ^ŽƵƌĐĞǁĞůůĂĐƵƌƌĞŶƚŵĞĂŶƐƚŽǀĂůŝĚĂƚĞŽƌĂƵƚŚĞŶƟĐĂƚĞ ^ƵƉƉůŝĞƌ͛ƐĂƵƚŚŽƌŝnjĞĚĚĞĂůĞƌƐ͕ĚŝƐƚƌŝďƵƚŽƌƐ͕ŽƌƌĞƐĞůůĞƌƐǁŚŝĐŚŵĂLJĐŽŵƉůĞƚĞƚƌĂŶƐĂĐƟŽŶƐŽĨ/ŶĐůƵĚĞĚ ^ŽůƵƟŽŶƐŽīĞƌĞĚƵŶĚĞƌƚŚŝƐŐƌĞĞŵĞŶƚ͘^ŽƵƌĐĞǁĞůůŵĂLJƌĞƋƵĞƐƚƵƉĚĂƚĞĚŝŶĨŽƌŵĂƟŽŶŝŶŝƚƐ ĚŝƐĐƌĞƟŽŶ͕ĂŶĚ^ƵƉƉůŝĞƌĂŐƌĞĞƐƚŽƉƌŽǀŝĚĞƌĞƋƵĞƐƚĞĚŝŶĨŽƌŵĂƟŽŶǁŝƚŚŝŶĂƌĞĂƐŽŶĂďůĞƟŵĞ͘
2) WƌŽĚƵĐƚĂŶĚWƌŝĐĞŚĂŶŐĞƐZĞƋƵŝƌĞŵĞŶƚƐ͘ ^ƵƉƉůŝĞƌŵĂLJƌĞƋƵĞƐƚ/ŶĐůƵĚĞĚ^ŽůƵƟŽŶƐchanges, ĂĚĚŝƟŽŶƐ͕ŽƌĚĞůĞƟŽŶƐĂƚĂŶLJƟŵĞ͘ůůƌĞƋƵĞƐƚƐŵƵƐƚďĞŵĂĚĞŝŶǁƌŝƟŶŐďLJƐƵďŵŝƫŶŐĂ^ŽƵƌĐĞǁĞůů WƌŝĐĞĂŶĚWƌŽĚƵĐƚŚĂŶŐĞZĞƋƵĞƐƚ&ŽƌŵƚŽ^ŽƵƌĐĞǁĞůů͘ƚĂŵŝŶŝŵƵŵ͕ƚŚĞƌĞƋƵĞƐƚŵƵƐƚ͗ x /ĚĞŶƟĨLJƚŚĞĂƉƉůŝĐĂďůĞ^ŽƵƌĐĞǁĞůůŐƌĞĞŵĞŶƚŶƵŵďĞƌ͖
x ůĞĂƌůLJƐƉĞĐŝĨLJƚŚĞƌĞƋƵĞƐƚĞĚĐŚĂŶŐĞ͖
x WƌŽǀŝĚĞƐƵĸĐŝĞŶƚĚĞƚĂŝůƚŽũƵƐƟĨLJƚŚĞƌĞƋƵĞƐƚĞĚĐŚĂŶŐĞ͖ x /ŶĚŝǀŝĚƵĂůůLJůŝƐƚĂůů/ŶĐůƵĚĞĚ^ŽůƵƟŽŶƐĂīĞĐƚĞĚďLJƚŚĞƌĞƋƵĞƐƚĞĚĐŚĂŶŐĞ͕ĂůŽŶŐǁŝƚŚƚŚĞ ƌĞƋƵĞƐƚĞĚĐŚĂŶŐĞ;Ğ͘Ő͕͘ĂĚĚŝƟŽŶ͕ĚĞůĞƟŽŶ͕ƉƌŝĐĞĐŚĂŶŐĞͿ͖ĂŶĚ x /ŶĐůƵĚĞĂĐŽŵƉůĞƚĞƌĞƐƚĂƚĞŵĞŶƚŽĨWƌŝĐŝŶŐ>ŝƐƚǁŝƚŚƚŚĞĞīĞĐƟǀĞĚĂƚĞŽĨƚŚĞŵŽĚŝĮĞĚƉƌŝĐŝŶŐ͕ ŽƌƉƌŽĚƵĐƚĂĚĚŝƟŽŶŽƌĚĞůĞƟŽŶ͘dŚĞŶĞǁƉƌŝĐŝŶŐƌĞƐƚĂƚĞŵĞŶƚŵƵƐƚŝŶĐůƵĚĞĂůů/ŶĐůƵĚĞĚ ^ŽůƵƟŽŶƐŽīĞƌĞĚ͕ĞǀĞŶĨŽƌƚŚŽƐĞŝƚĞŵƐǁŚĞƌĞƉƌŝĐŝŶŐƌĞŵĂŝŶƐƵŶĐŚĂŶŐĞĚ͘
ĨƵůůLJĞdžĞĐƵƚĞĚ^ŽƵƌĐĞǁĞůůWƌŝĐĞĂŶĚWƌŽĚƵĐƚŚĂŶŐĞZĞƋƵĞƐƚ&ŽƌŵǁŝůůďĞĐŽŵĞĂŶĂŵĞŶĚŵĞŶƚƚŽ ƚŚŝƐŐƌĞĞŵĞŶƚĂŶĚǁŝůůďĞŝŶĐŽƌƉŽƌĂƚĞĚďLJƌĞĨĞƌĞŶĐĞ͘
3) ƵƚŚŽƌŝnjĞĚZĞƉƌĞƐĞŶƚĂƟǀĞ͘ ^ƵƉƉůŝĞƌǁŝůůĂƐƐŝŐŶĂŶƵƚŚŽƌŝnjĞĚZĞƉƌĞƐĞŶƚĂƟǀĞƚŽ^ŽƵƌĐĞǁĞůůĨŽƌƚŚŝƐ ŐƌĞĞŵĞŶƚĂŶĚŵƵƐƚƉƌŽǀŝĚĞƉƌŽŵƉƚŶŽƟĐĞƚŽ^ŽƵƌĐĞǁĞůůŝĨƚŚĂƚƉĞƌƐŽŶŝƐĐŚĂŶŐĞĚ͘dŚĞƵƚŚŽƌŝnjĞĚ ZĞƉƌĞƐĞŶƚĂƟǀĞǁŝůůďĞƌĞƐƉŽŶƐŝďůĞĨŽƌ͗
x DĂŝŶƚĞŶĂŶĐĞĂŶĚŵĂŶĂŐĞŵĞŶƚŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͖
x dŝŵĞůLJƌĞƐƉŽŶƐĞƚŽĂůů^ŽƵƌĐĞǁĞůůĂŶĚWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŝŶƋƵŝƌŝĞƐ͖ĂŶĚ
x WĂƌƟĐŝƉĂƟŽŶŝŶƌĞǀŝĞǁƐǁŝƚŚ^ŽƵƌĐĞǁĞůů͘
^ŽƵƌĐĞǁĞůůΖƐƵƚŚŽƌŝnjĞĚZĞƉƌĞƐĞŶƚĂƟǀĞŝƐŝƚƐŚŝĞĨWƌŽĐƵƌĞŵĞŶƚKĸĐĞƌ.
4) WĞƌĨŽƌŵĂŶĐĞZĞǀŝĞǁƐ͘ Supplier will ƉĞƌĨŽƌŵĂŵŝŶŝŵƵŵŽĨŽŶĞƌĞǀŝĞǁǁŝƚŚ^ŽƵƌĐĞǁĞůůƉĞƌ ĂŐƌĞĞŵĞŶƚLJĞĂƌ͘dŚĞƌĞǀŝĞǁǁŝůůĐŽǀĞƌƚƌĂŶƐĂĐƟŽŶƐƚŽWĂƌƟĐŝƉĂƟŶŐ ŶƟƟĞƐ͕ƉƌŝĐŝŶŐĂŶĚƚĞƌŵƐ͕
ĂĚŵŝŶŝƐƚƌĂƟǀĞĨĞĞƐ͕ƐĂůĞƐĚĂƚĂƌĞƉŽƌƚƐ͕ƉĞƌĨŽƌŵĂŶĐĞŝƐƐƵĞƐ͕ƐƵƉƉůLJ chain issues, customer issues, and ĂŶLJŽƚŚĞƌŶĞĐĞƐƐĂƌLJŝŶĨŽƌŵĂƟŽŶ͘
5) ^ĂůĞƐZĞƉŽƌƟŶŐZĞƋƵŝƌĞĚ͘ ^ƵƉƉůŝĞƌŝƐƌĞƋƵŝƌĞĚĂƐĂŵĂƚĞƌŝĂůĞůĞŵĞŶƚƚŽƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚƚŽ ƌĞƉŽƌƚĂůůĐŽŵƉůĞƚĞĚƚƌĂŶƐĂĐƟŽŶƐǁŝƚŚWĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐƵƟůŝnjŝŶŐƚŚŝƐŐƌĞĞŵĞŶƚ͘&ĂŝůƵƌĞƚŽ
provide complete and accurate ƌĞƉŽƌƚƐĂƐĚĞĮŶĞĚŚĞƌĞŝŶǁŝůůďĞĂŵĂƚĞƌŝĂůďƌĞĂĐŚŽĨƚŚĞŐƌĞĞŵĞŶƚ
790
050625-PBL
v052824 8
ĂŶĚ^ŽƵƌĐĞǁĞůůƌĞƐĞƌǀĞƐƚŚĞƌŝŐŚƚƚŽƉƵƌƐƵĞĂůůƌĞŵĞĚŝĞƐĂǀĂŝůĂďůĞĂƚůĂǁŝŶĐůƵĚŝŶŐĐĂŶĐĞůůĂƟŽŶŽĨ this Agreement.
6) ZĞƉŽƌƟŶŐZĞƋƵŝƌĞŵĞŶƚƐ͘ ^ƵƉƉůŝĞƌŵƵƐƚƉƌŽǀŝĚĞ^ŽƵƌĐĞǁĞůůĂŶĂĐƟǀŝƚLJƌĞƉŽƌƚŽĨĂůůƚƌĂŶƐĂĐƟŽŶƐ ĐŽŵƉůĞƚĞĚƵƟůŝnjŝŶŐƚŚŝƐŐƌĞĞŵĞŶƚ͘ZĞƉŽƌƚƐĂƌĞĚƵĞĂƚůĞĂƐƚŽŶĐĞĞĂĐŚĐĂůĞŶĚĂƌƋƵĂƌƚĞƌ;ZĞƉŽƌƟŶŐ WĞƌŝŽĚͿ͘ZĞƉŽƌƚƐŵƵƐƚďĞƌĞĐĞŝǀĞĚŶŽůĂƚĞƌƚŚĂŶϰϱĐĂůĞŶĚĂƌĚĂLJƐĂŌĞƌƚŚĞĞŶĚŽĨĞĂch calendar ƋƵĂƌƚĞƌ ͘^ƵƉƉůŝĞƌŵĂLJƌĞƉŽƌƚŽŶĂŵŽƌĞĨƌĞƋƵĞŶƚďĂƐŝƐŝŶŝƚƐĚŝƐĐƌĞƟŽŶ͘ZĞƉŽƌƚƐŵƵƐƚďĞƉƌŽǀŝĚĞĚ ƌĞŐĂƌĚůĞƐƐŽĨƚŚĞĂŵŽƵŶƚŽĨĐŽŵƉůĞƚĞĚƚƌĂŶƐĂĐƟŽŶƐĚƵƌŝŶŐƚŚĂƚƋƵĂƌƚĞƌ;ŝ͘Ğ͕͘ŝĨƚŚĞƌĞĂƌĞŶŽƐĂůĞƐ͕ Supplier must submit a ƌĞƉŽƌƚŝŶĚŝĐĂƟŶŐŶŽƐĂůĞƐǁĞƌĞŵĂĚĞͿ͘
dŚĞZĞƉŽƌƚŵƵƐƚĐŽŶƚĂŝŶƚŚĞĨŽůůŽǁŝŶŐĮĞůĚƐ͗
x WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJEĂŵĞ;Ğ͘Ő͕͘ŝƚLJŽĨ^ƚĂƉůĞƐ,ŝŐŚǁĂLJĞƉĂƌƚŵĞŶƚͿ͖
x WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJWŚLJƐŝĐĂů^ƚƌĞĞƚĚĚƌĞƐƐ͖
x WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŝƚLJ͖
x WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ^ƚĂƚĞͬWƌŽǀŝŶĐĞ͖
x WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŝƉͬWŽƐƚĂůŽĚĞ͖
x ^ŽƵƌĐĞǁĞůůWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJAccount Number;
x dƌĂŶƐĂĐƟŽŶĞƐĐƌŝƉƟŽŶ͖
x dƌĂŶƐĂĐƟŽŶWƵƌĐŚĂƐĞĚWƌŝĐĞ͖
x ^ŽƵƌĐĞǁĞůůĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞƉƉůŝĞĚ͖ĂŶĚ
x ĂƚĞdƌĂŶƐĂĐƟŽŶǁĂƐŝŶǀŽŝĐĞĚͬƐĂůĞǁĂƐƌĞĐŽŐŶŝnjĞĚĂƐƌĞǀĞŶƵĞďLJ^ƵƉƉůŝĞƌ ͘
/Ĩcollected by Supplier, the Report may include the ĨŽůůŽǁŝŶŐĮĞůĚƐĂƐĂǀĂŝůĂďůĞ͗ x WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŽŶƚĂĐƚEĂŵĞ͖
x WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŽŶƚĂĐƚ
ŵĂŝůĚĚƌĞƐƐ͖
x WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŽŶƚĂĐƚdĞůĞƉŚŽŶĞEƵŵďĞƌ͖
7) ĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞ͘ /ŶĐŽŶƐŝĚĞƌĂƟŽŶĨŽƌƚŚĞƐƵƉƉŽƌƚĂŶĚƐĞƌǀŝĐĞƐƉƌŽǀŝĚĞĚďLJ^ŽƵƌĐĞǁĞůů͕^ƵƉƉůŝĞƌ ǁŝůůƉĂLJĂŶĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞƚŽ^ŽƵƌĐĞǁĞůůŽŶĂůůĐŽŵƉůĞƚĞĚƚƌĂŶƐĂĐƟŽŶƐƚŽWĂƌƟĐŝƉĂƟŶŐ ŶƟƟĞƐ
ƵƟůŝnjŝŶŐƚŚŝƐŐƌĞĞŵĞŶƚ͘^ƵƉƉůŝĞƌǁŝůůŝŶĐůƵĚĞŝƚƐĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞǁŝƚŚin its proposed pricing. ^ƵƉƉůŝĞƌŵĂLJŶŽƚĚŝƌĞĐƚůLJĐŚĂƌŐĞWĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐƚŽŽīƐĞƚƚŚĞĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞ͘
8) &ĞĞĂůĐƵůĂƟŽŶ͘ ^ƵƉƉůŝĞƌ͛ƐĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞƉĂLJĂďůĞƚŽ^ŽƵƌĐĞǁĞůůǁŝůůďĞĐĂůĐƵůĂƚĞĚĂƐĂƐƚĂƚĞĚ ƉĞƌĐĞŶƚĂŐĞ;ůŝƐƚĞĚŝŶ^ƵƉƉůŝĞƌ͛ƐWƌŽƉŽƐĂůͿŽĨĂůůĐŽŵƉůĞƚĞĚƚƌĂŶƐĂĐƟŽŶƐƵƟůŝnjŝŶŐƚŚŝƐDĂƐƚĞƌ ŐƌĞĞŵĞŶƚǁŝƚŚŝŶƚŚĞƉƌĞĐĞĚŝŶŐZĞƉŽƌƟŶŐWĞƌŝŽĚ͘ For certain categories, a ŇĂƚĨĞĞ may be proposed. dŚĞĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞǁŝůůďĞƐƚĂƚĞĚŝŶ^ƵƉƉůŝĞƌ͛ƐWƌŽƉŽƐĂů.
9) &ĞĞZĞŵŝƩĂŶĐĞ͘ ^ƵƉƉůŝĞƌǁŝůůƌĞŵŝƚĨĞĞƚŽ^ŽƵƌĐĞǁĞůůŶŽůĂƚĞƌƚŚĂŶϰϱĐĂůĞŶĚĂƌĚĂLJƐĂŌĞƌƚŚĞĐůŽƐĞ ŽĨƚŚĞƉƌĞĐĞĚŝŶŐĐĂůĞŶĚĂƌƋƵĂƌƚĞƌŝŶĐŽŶũƵŶĐƟŽŶǁŝƚŚ^ƵƉƉůŝĞƌ͛ƐZĞƉŽƌƟŶŐWĞƌŝŽĚŽďůŝŐĂƟŽŶƐ ĚĞĮŶĞĚŚĞƌĞŝŶ͘WĂLJŵĞŶƚƐƐŚŽƵůĚŶŽƚĞƚŚĞ^ƵƉƉůŝĞƌ͛ƐŶĂŵĞĂŶĚ^ŽƵ ƌĐĞǁĞůů-assigned Agreement
number in the memo; and must be either mailed to Sourcewell ĂďŽǀĞ͞ƩŶ͗ĐĐŽƵŶƚƐZĞĐĞŝǀĂďůĞ͟Žƌ ƌĞŵŝƩĞĚĞůĞĐƚƌŽŶŝĐĂůůLJƚŽ^ŽƵƌĐĞǁĞůů͛ƐďĂŶŬŝŶŐŝŶƐƟƚƵƟŽŶƉĞƌ^ŽƵƌĐĞǁĞůů͛Ɛ&ŝŶĂŶĐĞĚĞƉĂƌƚŵĞŶƚ ŝŶƐƚƌƵĐƟŽŶƐ͘
10) EŽŶĐŽŵƉůŝĂŶĐĞ͘ ^ŽƵƌĐĞǁĞůůƌĞƐĞƌǀĞƐƚŚĞƌŝŐŚƚƚŽƐĞĞŬĂůůƌĞŵĞĚŝĞƐavailable ĂƚůĂǁĨŽƌƵŶƉĂŝĚŽƌ ƵŶĚĞƌƉĂŝĚĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞƐĚƵĞƵŶĚĞƌƚŚŝƐŐƌĞĞŵĞŶƚ͘&ĂŝůƵƌĞƚŽƌĞŵŝƚƉĂLJŵĞŶƚ͕ĚĞůŝŶƋƵĞŶƚ payments͕ƵŶĚĞƌƉĂLJŵĞŶƚƐ͕ŽƌŽƚŚĞƌĚĞǀŝĂƟŽŶƐĨƌŽŵƚŚĞƌĞƋƵŝƌĞŵĞŶƚƐŽĨƚŚŝƐŐƌĞĞŵĞŶƚŵĂLJďĞ
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ĚĞĞŵĞĚĂŵĂƚĞƌŝĂůďƌĞĂĐŚĂŶĚŵĂLJƌĞƐƵůƚŝŶĐĂŶĐĞůůĂƟŽŶŽĨƚŚŝƐŐƌĞĞŵĞŶƚĂŶĚĚŝƐďĂƌŵĞŶƚĨƌŽŵ ĨƵƚƵƌĞŐƌĞĞŵĞŶƚƐ͘
11) ƵĚŝƚZĞƋƵŝƌĞŵĞŶƚƐ͘ Pursuant to Minn. Stat. Α ϭϲ͘Ϭϱ͕ƐƵďĚŝǀŝƐŝŽŶϱ͕ƚŚĞŬƐ͕ƌĞĐŽƌĚƐ͕ ĚŽĐƵŵĞŶƚƐ͕ĂŶĚĂĐĐŽƵŶƟŶŐƉƌŽĐĞĚƵƌĞƐĂŶĚƉƌĂĐƟĐĞƐƌĞůĞǀĂŶƚƚŽƚŚŝƐŐƌĞĞŵĞŶƚĂƌĞƐƵďũĞĐƚƚŽ ĞdžĂŵŝŶĂƟŽŶďLJ^ŽƵƌĐĞǁĞůůand ƚŚĞDŝŶŶĞƐŽƚĂ^ƚĂƚĞƵĚŝƚŽƌĨŽƌĂŵŝŶŝŵƵŵŽĨƐŝdžLJĞĂƌƐĨƌŽŵƚŚĞĞŶĚ ŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͘^ƵƉƉůŝĞƌĂŐƌĞĞƐƚŽĨƵůůLJĐŽŽƉĞƌĂƚĞǁŝƚŚ^ŽƵƌĐĞǁĞůůŝŶĂƵĚŝƟŶŐƚƌĂŶƐĂĐƟŽŶƐƵŶĚĞƌ ƚŚŝƐŐƌĞĞŵĞŶƚƚŽĞŶƐƵƌĞĐŽŵƉůŝĂŶĐĞǁŝƚŚƉƌŝĐŝŶŐƚĞƌŵƐ͕ĐŽƌƌĞĐƚĐĂůĐƵůĂƟŽŶĂŶĚƌĞŵŝƩĂŶĐĞŽĨ ĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞƐ͕ĂŶĚǀĞƌŝĮĐĂƟŽŶ ŽĨƚƌĂŶƐĂĐƟŽŶƐĂƐŵĂLJďĞƌĞƋƵĞƐƚĞĚďLJĂWĂƌƟĐŝƉĂƟŶŐ ŶƟƚLJŽƌ
Sourcewell.
12) ƐƐŝŐŶŵĞŶƚ͕dƌĂŶƐĨĞƌ͕and ĚŵŝŶŝƐƚƌĂƟǀĞŚĂŶŐĞƐ͘^ƵƉƉůŝĞƌŵĂLJŶŽƚĂƐƐŝŐŶŽƌŽƚŚĞƌǁŝƐĞƚƌĂŶƐĨĞƌŝƚƐ ƌŝŐŚƚƐŽƌŽďůŝŐĂƟŽŶƐƵŶĚĞƌƚŚŝƐŐƌĞĞŵĞŶƚǁŝƚŚŽƵƚƚŚĞƉƌŝŽƌǁƌŝƩĞŶĐŽŶƐĞŶƚŽĨ^ŽƵƌĐĞǁĞůů͘^ƵĐŚ consent will not be unreasonably withheld. Sourcewell reserves the right to unilaterally assign all or ƉŽƌƟŽŶƐŽĨƚŚŝƐŐƌĞĞŵĞŶƚǁŝƚŚŝŶŝƚƐƐŽůĞĚŝƐĐƌĞƟŽŶƚŽĂĚĚƌĞƐƐĐŽƌƉŽƌĂƚĞƌĞƐƚƌƵĐƚƵƌŝŶŐƐ͕ŵĞƌŐĞƌƐ͕ ĂĐƋƵŝƐŝƟŽŶƐ͕ŽƌŽƚŚĞƌĐŚĂŶŐĞƐƚŽƚŚĞResponsible Party and named in the Agreement. Any prohibited assignment is ŝŶǀĂůŝĚ͘hƉŽŶƌĞƋƵĞƐƚ ^ŽƵƌĐĞǁĞůůŵĂLJŵĂŬĞĂĚŵŝŶŝƐƚƌĂƟǀĞĐŚĂŶŐĞƐƚŽĂŐƌĞĞŵĞŶƚ ĚŽĐƵŵĞŶƚĂƟŽŶƐƵĐŚĂƐŶĂŵĞĐŚĂŶŐĞƐ͕ĂĚĚƌĞƐƐĐŚĂŶŐĞƐ͕ĂŶĚŽƚŚĞƌŶŽŶ-material updates as determined ǁŝƚŚŝŶŝƚƐƐŽůĞĚŝƐĐƌĞƟŽŶ͘
13) ŵĞŶĚŵĞŶƚƐ͘ ŶLJŵĂƚĞƌŝĂůĐŚĂŶŐĞƚŽƚŚŝƐŐƌĞĞŵĞŶƚŵƵƐƚďĞĞdžĞĐƵƚĞĚŝŶǁƌŝƟŶŐƚŚƌŽƵŐŚĂŶ ĂŵĞŶĚŵĞŶƚĂŶĚǁŝůůŶŽƚďĞĞīĞĐƟǀĞƵŶƟůŝƚŚĂƐďĞĞŶĚƵůLJĞdžĞĐƵƚĞĚďLJƚŚĞƉĂƌƟĞƐ.
14) tĂŝǀĞƌ͘ Failure by Sourcewell to ĞŶĨŽƌĐĞany right under this Agreement will not be deemed a waiver ŽĨƐƵĐŚƌŝŐŚƚŝŶƚŚĞĞǀĞŶƚŽĨƚŚĞĐŽŶƟŶƵĂƟŽŶŽƌƌĞƉĞƟƟŽŶŽĨƚŚĞĐŝƌĐƵŵƐƚĂŶĐĞƐŐŝǀŝŶŐƌŝƐĞƚŽƐƵĐŚ right.
15) ŽŵƉůĞƚĞŐƌĞĞŵĞŶƚ͘ dŚŝƐŐƌĞĞŵĞŶƚƌĞƉƌĞƐĞŶƚƐƚŚĞĐŽŵƉůĞƚĞĂŐƌĞĞŵĞŶƚďĞƚǁĞĞŶƚŚĞƉĂƌƟĞƐ ĨŽƌ ƚŚĞƐĐŽƉĞĂƐĚĞĮŶĞĚŚĞƌĞŝŶ͘^ƵƉƉůŝĞƌĂŶĚ^ŽƵƌĐĞǁĞůůŵĂLJĞŶƚĞƌŝŶƚŽƐĞƉĂƌĂƚĞǁƌŝƩĞŶĂŐƌĞĞŵĞŶƚƐ ƌĞůĂƟŶŐƐƉĞĐŝĮĐĂůůLJƚŽƚƌĂŶƐĂĐƟŽŶƐŽƵƚƐŝĚĞŽĨƚŚĞƐĐŽƉĞŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͘
16) ZĞůĂƟŽŶƐŚŝƉŽĨ^ŽƵƌĐĞǁĞůůĂŶĚ^ƵƉƉůŝĞƌ͘ dŚŝƐŐƌĞĞŵĞŶƚĚŽĞƐŶŽƚĐƌĞĂƚĞĂƉĂƌƚŶĞƌƐŚŝƉ͕ũŽŝŶƚ ǀĞŶƚƵƌĞ͕ŽƌĂŶLJŽƚŚĞƌƌĞůĂƟŽŶƐŚŝƉƐƵĐŚĂƐĞŵƉůŽLJĞĞ͕ŝŶĚĞƉĞŶĚĞŶƚĐŽŶƚƌĂĐƚŽƌ͕ŵĂƐƚĞƌ-servant, or principal-agent.
17) /ŶĚĞŵŶŝĮĐĂƟŽŶ͘ ^ƵƉƉůŝĞƌŵƵƐƚŝŶĚĞŵŶŝĨLJ͕ĚĞĨĞŶĚ͕ƐĂǀĞ͕ĂŶĚŚŽůĚ^ŽƵƌĐĞǁĞůů͕ŝŶĐůƵĚŝŶŐƚŚĞŝƌĂŐĞŶƚƐ ĂŶĚĞŵƉůŽLJĞĞƐ͕ŚĂƌŵůĞƐƐĨƌŽŵĂŶLJĐůĂŝŵƐŽƌĐĂƵƐĞƐŽĨĂĐƟŽŶ͕ŝŶĐůƵĚŝŶŐĂƩŽƌŶĞLJƐ͛ĨĞĞƐŝŶĐƵƌƌĞĚďLJ ^ŽƵƌĐĞǁĞůů͕ĂƌŝƐŝŶŐŽƵƚŽĨĂŶLJĂĐƚŽƌŽŵŝƐƐŝŽŶŝŶƚŚĞƉĞƌĨŽƌŵĂŶ ĐĞŽĨƚŚŝƐ Agreement by the Supplier
ŽƌŝƚƐĂŐĞŶƚƐŽƌĞŵƉůŽLJĞĞƐ͖ƚŚŝƐŝŶĚĞŵŶŝĮĐĂƟŽŶŝŶĐůƵĚĞƐŝŶũƵƌLJŽƌĚĞĂƚŚƚŽƉĞƌƐŽŶ;ƐͿŽƌƉƌŽƉĞƌƚLJ ĂůůĞŐĞĚƚŽŚĂǀĞďĞĞŶĐĂƵƐĞĚďLJƐŽŵĞĚĞĨĞĐƚŝŶĚĞƐŝŐŶ͕ĐŽŶĚŝƟŽŶ͕ŽƌƉĞƌĨŽƌŵĂŶĐĞŽĨ/ŶĐůƵĚĞĚ ^ŽůƵƟŽŶƐƵŶĚĞƌƚŚŝƐŐƌĞĞŵĞŶƚ͘^ŽƵƌĐĞǁĞůů͛ƐƌĞƐƉŽŶƐŝďŝůŝƚLJǁŝůůďĞŐŽǀĞƌŶĞĚďLJƚŚĞ^ƚĂƚĞŽĨ DŝŶŶĞƐŽƚĂ͛ƐdŽƌƚ>ŝĂďŝůŝƚLJĐƚ;DŝŶŶĞƐŽƚĂ^ƚĂƚƵƚĞƐŚĂƉƚĞƌϰϲϲͿĂŶĚŽƚŚĞƌĂƉƉůŝĐĂďůĞůĂǁ͘
18) ĂƚĂWƌĂĐƟĐĞƐ͘ ^ƵƉƉůŝĞƌĂŶĚ^ŽƵƌĐĞǁĞůůĂĐŬŶŽǁůĞĚŐĞ^ŽƵƌĐĞǁĞůůŝƐƐƵďũĞĐƚƚŽƚŚĞDŝŶŶĞƐŽƚĂ 'ŽǀĞƌŶŵĞŶƚĂƚĂWƌĂĐƟĐĞƐĐƚ͕DŝŶŶĞƐŽƚĂ^ƚĂƚƵƚĞƐŚĂƉƚĞƌϭϯ͘ƐŝƚĂƉƉůŝĞƐƚŽĂůůĚĂƚĂĐƌĞĂƚĞĚĂŶĚ ŵĂŝŶƚĂŝŶĞĚŝŶƉĞƌĨŽƌŵĂŶĐĞŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͕^ƵƉƉůŝĞƌŵĂLJďĞƐƵďũĞĐƚƚŽƚŚĞƌĞƋƵŝƌĞŵĞŶƚƐŽĨƚŚŝƐ chapter.
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19) 'ƌĂŶƚŽĨ>ŝĐĞŶƐĞ͘
a) ƵƌŝŶŐƚŚĞƚĞƌŵŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͗
i) ^ƵƉƉůŝĞƌWƌŽŵŽƟŽŶ͘ Sourcewell grants to Supplier a royalty-ĨƌĞĞ͕ǁŽƌůĚǁŝĚĞ͕ŶŽŶ-exclusive ƌŝŐŚƚĂŶĚůŝĐĞŶƐĞƚŽƵƐĞƚŚĞƚƌĂĚĞŵĂƌŬ;ƐͿƉƌŽǀŝĚĞĚƚŽ^ƵƉƉůŝĞƌďLJ^ŽƵƌĐĞǁĞůůŝŶĂĚǀĞƌƟƐŝŶŐ͕ ƉƌŽŵŽƟŽŶĂůŵĂƚĞƌŝĂůƐ͕ĂŶĚŝŶĨŽƌŵĂƟŽŶĂůƐŝƚĞƐĨŽƌƚŚĞƉƵƌƉŽƐĞŽĨŵĂƌŬĞƟŶŐ^ŽƵƌĐĞǁĞůů͛Ɛ Agreement with Supplier.
ii) ^ŽƵƌĐĞǁĞůůWƌŽŵŽƟŽŶ͘ Supplier grants to Sourcewell a royalty-ĨƌĞĞ͕ǁŽƌůĚǁŝĚĞ͕ŶŽŶ- ĞdžĐůƵƐŝǀĞƌŝŐŚƚĂŶĚůŝĐĞŶƐĞƚŽƵƐĞ^ƵƉƉůŝĞƌ͛ƐƚƌĂĚĞŵĂƌŬƐŝŶĂĚǀĞƌƟƐŝŶŐ͕ƉƌŽŵŽƟŽŶĂů ŵĂƚĞƌŝĂůƐ͕ĂŶĚŝŶĨŽƌŵĂƟŽŶĂůƐŝƚĞƐĨŽƌƚŚĞƉƵƌƉŽƐĞŽĨŵĂƌŬĞƟŶŐ^ƵƉƉůŝĞƌ͛ƐŐƌĞĞŵĞŶƚǁŝƚŚ Sourcewell.
b) >ŝŵŝƚĞĚZŝŐŚƚŽĨ^ƵďůŝĐĞŶƐĞ͘ dŚĞƌŝŐŚƚĂŶĚůŝĐĞŶƐĞŐƌĂŶƚĞĚŚĞƌĞŝŶŝŶĐůƵĚĞƐĂůŝŵŝƚĞĚƌŝŐŚƚŽĨĞĂĐŚ ƉĂƌƚLJƚŽŐƌĂŶƚƐƵďůŝĐĞŶƐĞƐƚŽƚŚĞŝƌƌĞƐƉĞĐƟǀĞƐƵďƐŝĚŝĂƌŝĞƐ͕ĚŝƐƚƌŝďƵƚŽƌƐ͕ĚĞĂůĞƌƐ͕ƌĞƐĞůůĞƌƐ͕ ŵĂƌŬĞƟŶŐƌĞƉƌĞƐĞŶƚĂƟǀĞƐ͕ƉĂƌƚŶĞƌƐ͕ŽƌĂŐĞŶƚƐ;ĐŽůůĞĐƟǀĞůLJ͞WĞƌŵŝƩĞĚ^ƵďůŝĐĞŶƐĞĞƐ͟ͿŝŶ ĂĚǀĞƌƟƐŝŶŐ͕ƉƌŽŵŽƟŽŶĂů͕ŽƌŝŶĨŽƌŵĂƟŽŶĂůŵĂƚĞƌŝĂůƐĨŽƌƚŚĞƉƵƌƉŽƐĞŽĨŵĂƌŬĞƟŶŐƚŚĞWĂƌƟĞƐ͛ ƌĞůĂƟŽŶƐŚŝƉ͘ŶLJƐƵďůŝĐĞŶƐĞŐƌĂŶƚĞĚǁŝůůďĞƐƵďũĞĐƚƚŽƚŚĞƚĞƌŵƐĂŶĚĐŽŶĚŝƟŽŶƐŽĨƚŚŝƐƌƟĐůĞ͘
ĂĐŚƉĂƌƚLJǁŝůůďĞƌĞƐƉŽŶƐŝďůĞĨŽƌĂŶLJďƌĞĂĐŚŽĨƚŚŝƐƐĞĐƟŽŶ ďLJĂŶLJŽĨƚŚĞŝƌƌĞƐƉĞĐƟǀĞ sublicensees.
c) hƐĞ͖YƵĂůŝƚLJŽŶƚƌŽů͘
i) EĞŝƚŚĞƌƉĂƌƚLJŵĂLJĂůƚĞƌƚŚĞŽƚŚĞƌƉĂƌƚLJ͛ƐƚƌĂĚĞŵĂƌŬƐĨƌŽŵƚŚĞĨŽƌŵƉƌŽǀŝĚĞĚĂŶĚŵƵƐƚ ĐŽŵƉůLJǁŝƚŚƌĞŵŽǀĂůƌĞƋƵĞƐƚƐĂƐƚŽƐƉĞĐŝĮĐƵƐĞƐŽĨŝƚƐƚƌĂĚĞŵĂƌŬƐŽƌůŽŐŽƐ.
ii)
ĂĐŚƉĂƌƚLJĂŐƌĞĞƐƚŽƵƐĞ͕ĂŶĚƚŽĐĂƵƐĞŝƚƐWĞƌŵŝƩĞĚ^ƵďůŝĐĞŶƐĞĞƐƚŽƵƐĞ͕ƚŚĞŽƚŚĞƌƉĂƌƚLJ͛Ɛ ƚƌĂĚĞŵĂƌŬƐŽŶůLJŝŶŐŽŽĚĨĂŝƚŚĂŶĚŝŶĂĚŝŐŶŝĮĞĚŵĂŶŶĞƌĐŽŶƐŝƐƚĞŶƚǁŝƚŚƐƵĐŚƉĂƌƚLJ͛ƐƵƐĞŽĨ ƚŚĞƚƌĂĚĞŵĂƌŬƐ͘
ĂĐŚƉĂƌƚLJŵĂLJŵĂŬĞǁƌŝƩĞŶŶŽƟĐĞƚŽƚŚĞŽƚŚĞƌƌĞŐĂƌĚŝŶg misuse under ƚŚŝƐƐĞĐƟŽŶ͘dŚĞŽīĞŶĚŝŶŐƉĂƌƚLJǁŝůůŚĂǀĞϯϬĚĂLJƐŽĨƚŚĞĚĂƚĞŽĨƚŚĞǁƌŝƩĞŶŶŽƟĐĞƚŽĐƵƌĞ ƚŚĞŝƐƐƵĞŽƌƚŚĞůŝĐĞŶƐĞͬƐƵďůŝĐĞŶƐĞǁŝůůďĞƚĞƌŵŝŶĂƚĞĚ͘
d) dĞƌŵŝŶĂƟŽŶ͘ hƉŽŶƚŚĞƚĞƌŵŝŶĂƟŽŶŽĨƚŚŝƐŐƌĞĞŵĞŶƚĨŽƌĂŶLJƌĞĂƐŽŶ͕ĞĂĐŚƉĂƌƚLJ͕ŝŶĐůƵĚŝŶŐ WĞƌŵŝƩĞĚ^ƵďůŝĐĞŶƐĞĞƐ͕ǁŝůůŚĂǀĞϯϬĚĂLJƐƚŽƌĞŵŽǀĞĂůůdƌĂĚĞŵĂƌŬƐĨƌŽŵƐŝŐŶĂŐĞ͕ǁĞďƐŝƚĞƐ͕ĂŶĚ ƚŚĞůŝŬĞďĞĂƌŝŶŐƚŚĞŽƚŚĞƌƉĂƌƚLJ͛ƐŶĂŵĞŽƌůŽŐŽ;ĞdžĐĞƉƟŶŐ^ŽƵƌĐĞǁĞůů͛ƐƉƌĞ-printed ĐĂƚĂůŽŐŽĨ ƐƵƉƉůŝĞƌƐǁŚŝĐŚŵĂLJďĞƵƐĞĚƵŶƟůƚŚĞŶĞdžƚƉƌŝŶƟŶŐͿ͘^ƵƉƉůŝĞƌŵƵƐƚƌĞƚƵƌŶĂůůŵĂƌŬĞƟŶŐĂŶĚ ƉƌŽŵŽƟŽŶĂůŵĂƚĞƌŝĂůƐ͕ŝŶĐůƵĚŝŶŐƐŝŐŶĂŐĞ͕ƉƌŽǀŝĚĞĚďLJ^ŽƵƌĐĞǁĞůů͕ŽƌĚŝƐƉŽƐĞŽĨŝƚĂĐĐŽƌĚŝŶŐƚŽ ^ŽƵƌĐĞǁĞůů͛ƐǁƌŝƩĞŶĚŝƌĞĐƟŽŶƐ͘
20) sĞŶƵĞĂŶĚ'ŽǀĞƌŶŝŶŐůĂǁďĞƚǁĞĞŶ^ŽƵƌĐĞǁĞůůĂŶĚ^ƵƉƉůŝĞƌKŶůLJ͘ dŚĞƐƵďƐƚĂŶƟǀĞĂŶĚƉƌŽĐĞĚƵƌĂů
ůĂǁƐŽĨƚŚĞ^ƚĂƚĞŽĨDŝŶŶĞƐŽƚĂǁŝůůŐŽǀĞƌŶƚŚŝƐŐƌĞĞŵĞŶƚďĞƚǁĞĞŶ^ŽƵƌĐĞǁĞůůĂŶĚ^ƵƉƉůŝĞƌ ͘sĞŶƵĞ ĨŽƌĂůůůĞŐĂůƉƌŽĐĞĞĚŝŶŐƐĂƌŝƐŝŶŐŽƵƚŽĨƚŚŝƐŐƌĞĞŵĞŶƚďĞƚǁĞĞŶ^ŽƵƌĐĞǁĞůůĂŶĚ^ƵƉƉůŝĞƌǁŝůůďĞŝŶ ĐŽƵƌƚŽĨĐŽŵƉĞƚĞŶƚũƵƌŝƐĚŝĐƟŽŶǁŝƚŚŝŶƚŚĞ^ƚĂƚĞŽĨDŝŶŶĞƐŽƚĂ͘dŚŝƐƐĞĐƟŽŶĚŽĞƐŶŽƚĂƉƉůLJƚŽĂŶLJ ĚŝƐƉƵƚĞďĞƚǁĞĞŶ^ƵƉƉůŝĞƌĂŶĚWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͘dŚŝƐŐƌĞĞŵĞŶƚƌĞƐĞƌǀĞƐƚŚĞƌŝŐŚƚĨŽƌ^ƵƉƉůŝĞƌĂŶĚ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJƚŽŶĞŐŽƟĂƚĞƚŚŝƐƚĞƌŵƚŽǁŝƚŚŝŶĂŶLJƚƌĂŶƐĂĐƟŽŶĚŽĐƵŵĞŶƚƐ.
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21) ^ĞǀĞƌĂďŝůŝƚLJ͘ /ĨĂŶLJƉƌŽǀŝƐŝŽŶŽĨƚŚŝƐŐƌĞĞŵĞŶƚŝƐĨŽƵŶĚďLJĂĐŽƵƌƚŽĨĐŽŵƉĞƚĞŶƚũƵƌŝƐĚŝĐƟŽŶƚŽďĞ ŝůůĞŐĂů͕ƵŶĞŶĨŽƌĐĞĂďůĞ͕ŽƌǀŽŝĚƚŚĞŶďŽƚŚƉĂƌƟĞƐǁŝůůďĞƌĞůŝĞǀĞĚĨƌŽŵĂůůŽďůŝŐĂƟŽŶƐĂƌŝƐŝŶŐĨƌŽŵƚŚĂƚ ƉƌŽǀŝƐŝŽŶ͘/ĨƚŚĞƌĞŵĂŝŶĚĞƌŽĨƚŚŝƐŐƌĞĞŵĞŶƚŝƐĐĂƉĂďůĞŽĨďĞŝŶŐƉĞƌĨŽƌŵĞĚ͕ŝƚǁŝůůŶŽƚďĞĂīĞĐƚĞĚ ďLJƐƵĐŚĚĞƚĞƌŵŝŶĂƟŽŶŽƌĮŶĚŝŶŐĂŶĚŵƵƐƚďĞĨƵůůLJƉĞƌĨŽƌŵĞĚ͘ 22) /ŶƐƵƌĂŶĐĞŽǀĞƌĂŐĞ͘ At its own expense, Supplier must maintain valid insurance policy(ies) during ƚŚĞƉĞƌĨŽƌŵĂŶĐĞŽĨƚŚŝƐŐƌĞĞŵĞŶƚǁŝƚŚŝŶƐƵƌĂŶĐĞĐŽŵƉĂŶLJ;ŝĞƐͿůŝĐĞŶƐĞĚŽƌĂƵƚŚŽƌŝnjĞĚƚŽĚŽ ďƵƐŝŶĞƐƐŝŶƚŚĞ^ƚĂƚĞŽĨDŝŶŶĞƐŽƚĂŚĂǀŝŶŐĂŶ͞D
^d͟ƌĂƟŶŐŽĨ- ŽƌďĞƩĞƌ͕ǁŝƚŚĐŽverage and
ůŝŵŝƚƐŽĨŝŶƐƵƌĂŶĐĞŶŽƚůĞƐƐƚŚĂŶƚŚĞĨŽůůŽǁŝŶŐ͗
a) ŽŵŵĞƌĐŝĂů'ĞŶĞƌĂů>ŝĂďŝůŝƚLJ/ŶƐƵƌĂŶĐĞ͘ ^ƵƉƉůŝĞƌǁŝůůŵĂŝŶƚĂŝŶŝŶƐƵƌĂŶĐĞĐŽǀĞƌŝŶŐŝƚƐŽƉĞƌĂƟŽŶƐ͕ ǁŝƚŚĐŽǀĞƌĂŐĞŽŶĂŶŽĐĐƵƌƌĞŶĐĞďĂƐŝƐ͕ĂŶĚŵƵƐƚďĞƐƵďũĞĐƚƚŽƚĞƌŵƐŶŽůĞƐƐďƌŽĂĚƚŚĂŶƚŚĞ /ŶƐƵƌĂŶĐĞ^ĞƌǀŝĐĞƐKĸĐĞ;͞/^K͟ͿŽŵŵĞƌĐŝĂů'ĞŶĞƌĂů>ŝĂďŝůŝƚLJ&Žƌŵ'ϬϬϬϭ;ϮϬϬϭŽƌŶĞǁĞƌ ĞĚŝƟŽŶͿ͕ŽƌĞƋƵŝǀĂůĞŶƚ͘ƚĂŵŝŶŝŵƵŵ͕ĐŽǀĞƌĂŐĞŵƵƐƚŝŶĐůƵĚĞůŝĂďŝůŝƚLJĂƌŝƐŝŶŐĨƌŽŵƉƌĞŵŝƐĞƐ͕ ŽƉĞƌĂƟŽŶƐ͕ďŽĚŝůLJŝŶũƵƌLJĂŶĚƉƌŽƉĞƌƚLJĚĂŵĂŐĞ͕ŝŶĚĞƉĞŶĚĞŶƚĐŽŶƚƌĂĐƚŽƌƐ͕ƉƌŽĚƵĐƚƐ-completed ŽƉĞƌĂƟŽŶƐŝŶĐůƵĚŝŶŐĐŽŶƐƚƌƵĐƟŽŶĚĞĨĞĐƚ͕ĐŽŶƚƌĂĐƚƵĂůůŝĂďŝůŝƚLJ͕ďůĂŶŬĞƚĐŽŶƚƌĂĐƚƵĂůůŝĂďŝůŝƚLJ͕ĂŶĚ ƉĞƌƐŽŶĂůŝŶũƵƌLJĂŶĚĂĚǀĞƌƟƐŝŶŐŝŶũƵƌLJ͘ůůƌĞƋƵŝƌĞĚůŝŵŝƚƐ͕ƚĞƌŵƐĂŶĚĐŽŶĚŝƟŽŶƐŽĨĐŽǀĞƌĂŐĞŵƵƐƚ ďĞŵĂŝŶƚĂŝŶĞĚĚƵƌŝŶŐƚŚĞƚĞƌŵŽĨƚŚŝƐAgreement.
x Ψϭ͕ϱϬϬ͕ϬϬϬĞĂĐŚŽĐĐƵƌƌĞŶĐĞŽĚŝůLJ/ŶũƵƌLJĂŶĚWƌŽƉĞƌƚLJĂŵĂŐĞ x Ψϭ͕ϱϬϬ͕ϬϬϬWĞƌƐŽŶĂůĂŶĚĚǀĞƌƟƐŝŶŐ/ŶũƵƌLJ
x ΨϮ͕ϬϬϬ͕ϬϬϬĂŐŐƌĞŐĂƚĞĨŽƌƉƌŽĚƵĐƚƐůŝĂďŝůŝƚLJ-ĐŽŵƉůĞƚĞĚŽƉĞƌĂƟŽŶƐ x ΨϮ͕ϬϬϬ͕ϬϬϬŐĞŶĞƌĂůĂŐŐƌĞŐĂƚĞ
b) ĞƌƟĮĐĂƚĞƐŽĨ/ŶƐƵƌĂŶĐĞ͘ WƌŝŽƌƚŽĞdžĞĐƵƟŽŶŽĨƚŚŝƐŐƌĞĞŵĞŶƚ͕^ƵƉƉůŝĞƌŵƵƐƚĨƵƌŶŝƐŚƚŽ ^ŽƵƌĐĞǁĞůůĂĐĞƌƟĮĐĂƚĞŽĨŝŶƐƵƌĂŶĐĞ͕ĂƐĞǀŝĚĞŶĐĞŽĨƚŚĞŝŶƐƵƌĂŶĐĞƌĞƋƵŝƌĞĚƵŶĚĞƌƚŚŝƐ ŐƌĞĞŵĞŶƚ͘WƌŝŽƌƚŽĞdžƉŝƌĂƟŽŶŽĨƚŚĞƉŽůŝĐLJ;ŝĞƐͿ͕ƌĞŶĞǁĂůĐĞƌƟĮĐĂƚĞƐŵƵƐƚďĞŵĂŝůĞĚƚŽ Sourcewell, 202 12th Street Northeast, P .O. Box 219, Staples, MN 56479 or provided to in an ĂůƚĞƌŶĂƟǀĞŵĂŶŶĞƌĂƐĚŝƌĞĐƚĞĚďLJ^ŽƵƌĐĞǁĞůů͘dŚĞĐĞƌƟĮĐĂƚĞƐŵƵƐƚďĞƐŝŐŶĞĚďLJĂƉĞƌƐŽŶ ĂƵƚŚŽƌŝnjĞĚďLJƚŚĞŝŶƐƵƌĞƌ;ƐͿƚŽďŝŶĚĐŽǀĞƌĂŐĞŽŶƚŚĞŝƌďĞŚĂůĨ͘ &ĂŝůƵƌĞŽĨ^ƵƉƉůŝĞƌƚŽŵĂŝŶƚĂŝŶƚŚĞ ƌĞƋƵŝƌĞĚŝŶƐƵƌĂŶĐĞĂŶĚĚŽĐƵŵĞŶƚĂƟŽŶŵĂLJĐŽŶƐƟƚƵƚĞĂŵĂƚĞƌŝĂůďƌĞĂĐŚ͘
c) ĚĚŝƟŽŶĂů/ŶƐƵƌĞĚ
ŶĚŽƌƐĞŵĞŶƚĂŶĚWƌŝŵĂƌLJĂŶĚEŽŶ-ĐŽŶƚƌŝďƵƚŽƌLJ/ŶƐƵƌĂŶĐĞůĂƵƐĞ͘ Supplier ĂŐƌĞĞƐƚŽůŝƐƚ^ŽƵƌĐĞǁĞůů͕ŝŶĐůƵĚŝŶŐŝƚƐŽĸĐĞƌƐ͕ĂŐĞŶƚƐ͕ĂŶĚĞŵƉůŽLJĞĞƐ͕ĂƐĂŶĂĚĚŝƟŽŶĂůŝŶƐƵƌĞĚ ƵŶĚĞƌƚŚĞ^ƵƉƉůŝĞƌ͛ƐĐŽŵŵĞƌĐŝĂůŐĞŶĞƌĂůůŝĂďŝůŝƚLJŝŶƐƵƌĂŶĐĞƉŽůŝĐLJǁŝƚŚƌĞƐƉĞĐƚƚŽůŝĂďŝůŝƚLJĂƌŝƐŝŶŐ ŽƵƚŽĨĂĐƟǀŝƟĞƐ͕͞ŽƉĞƌĂƟŽŶƐ͕͟Žƌ͞ǁŽƌŬ͟ƉĞƌĨŽƌŵĞĚďLJŽƌŽŶďĞŚĂůĨŽĨ^ƵƉƉůŝĞƌ͕ĂŶĚƉƌŽĚƵĐƚƐ ĂŶĚĐŽŵƉůĞƚĞĚŽƉĞƌĂƟŽŶƐŽĨ^ƵƉƉůŝĞƌ ͘dŚĞƉŽůŝĐLJƉƌŽǀŝƐŝŽŶ;ƐͿŽƌ ĞŶĚŽƌƐĞŵĞŶƚ;ƐͿŵƵƐƚĨƵƌƚŚĞƌ
provide that coverage is primary and not excess over or contributory with any other valid, ĂƉƉůŝĐĂďůĞ͕ĂŶĚĐŽůůĞĐƟďůĞŝŶƐƵƌĂŶĐĞŽƌƐĞůĨ-ŝŶƐƵƌĂŶĐĞŝŶĨŽƌĐĞĨŽƌƚŚĞĂĚĚŝƟŽŶĂůŝŶƐƵƌĞĚƐ͘
d) tĂŝǀĞƌŽĨ^ƵďƌŽŐĂƟŽŶ͘ ^ƵƉƉůŝĞƌǁĂŝǀĞƐĂŶĚŵƵƐƚƌĞƋƵŝƌĞ;ďLJĞŶĚŽƌƐĞŵĞŶƚŽƌŽƚŚĞƌǁŝƐĞͿĂůůŝƚƐ ŝŶƐƵƌĞƌƐƚŽǁĂŝǀĞƐƵďƌŽŐĂƟŽŶƌŝŐŚƚƐĂŐĂŝŶƐƚ^ŽƵƌĐĞǁĞůůĂŶĚŽƚŚĞƌĂĚĚŝƟŽŶĂůŝŶƐƵƌĞĚƐĨŽƌůŽƐƐĞƐ ƉĂŝĚƵŶĚĞƌƚŚĞŝŶƐƵƌĂŶĐĞƉŽůŝĐŝĞƐƌĞƋƵŝƌĞĚďLJƚŚŝƐŐƌĞĞŵĞŶƚŽƌŽƚŚĞƌŝŶƐƵƌĂŶĐĞĂƉƉůŝĐĂble to ƚŚĞ^ƵƉƉůŝĞƌŽƌŝƚƐƐƵďĐŽŶƚƌĂĐƚŽƌƐ͘dŚĞǁĂŝǀĞƌŵƵƐƚĂƉƉůLJƚŽĂůůĚĞĚƵĐƟďůĞƐĂŶĚͬŽƌƐĞůĨ-insured ƌĞƚĞŶƟŽŶƐĂƉƉůŝĐĂďůĞƚŽƚŚĞƌĞƋƵŝƌĞĚŽƌĂŶLJŽƚŚĞƌŝŶƐƵƌĂŶĐĞŵĂŝŶƚĂŝŶĞĚďLJƚŚĞ^ƵƉƉůŝĞƌŽƌŝƚƐ ƐƵďĐŽŶƚƌĂĐƚŽƌƐ͘tŚĞƌĞƉĞƌŵŝƩĞĚďLJůĂǁ͕^ƵƉƉůŝĞƌŵƵƐƚƌĞƋƵŝƌĞƐŝŵŝůĂƌǁƌŝƩĞŶĞdžƉƌĞƐƐǁĂŝǀĞƌƐ ŽĨƐƵďƌŽŐĂƟŽŶĂŶĚŝŶƐƵƌĂŶĐĞĐůĂƵƐĞƐĨƌŽŵĞĂĐŚŽĨŝƚƐƐƵďĐŽŶƚƌĂĐƚŽƌƐ͘
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e) hŵďƌĞůůĂͬ
džĐĞƐƐ>ŝĂďŝůŝƚLJͬ^
>&-/E^hZ
Z
d
Ed/KE͘ dŚĞůŝŵŝƚƐƌĞƋƵŝƌĞĚďLJƚŚŝƐAgreement can
ďĞŵĞƚďLJĞŝƚŚĞƌƉƌŽǀŝĚŝŶŐĂƉƌŝŵĂƌLJƉŽůŝĐLJŽƌŝŶĐŽŵďŝŶĂƟŽŶǁŝƚŚƵŵďƌĞůůĂͬĞdžĐĞƐƐůŝĂďŝůŝƚLJ ƉŽůŝĐLJ;ŝĞƐͿ͕ŽƌƐĞůĨ-ŝŶƐƵƌĞĚƌĞƚĞŶƟŽŶ͘
23) dĞƌŵŝŶĂƟŽŶĨŽƌŽŶǀĞŶŝĞŶĐĞ͘ Sourcewell or Supplier may terminate this Agreement upon 60 ĐĂůĞŶĚĂƌĚĂLJƐΖǁƌŝƩĞŶŶŽƟĐĞƚŽƚŚĞŽƚŚĞƌWĂƌƚLJ͘dĞƌŵŝŶĂƟŽŶƉƵƌƐƵĂŶƚƚŽƚŚŝƐƐĞĐƟŽŶǁŝůůŶŽƚƌĞůŝĞǀĞ ƚŚĞ^ƵƉƉůŝĞƌ͛ƐŽďůŝŐĂƟŽŶƐƵŶĚĞƌƚŚŝƐŐƌĞĞŵĞŶƚĨŽƌany ƚƌĂŶƐĂĐƟŽŶƐĞŶƚĞƌĞĚǁŝƚŚWĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐƚŚƌŽƵŐŚƚŚĞĚĂƚĞŽĨƚĞƌŵŝŶĂƟŽŶ͕ŝŶĐůƵĚŝŶŐƌĞƉŽƌƟŶŐĂŶĚƉĂLJŵĞŶƚŽĨĂƉƉůŝĐĂďůĞ ĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞƐ͘
24) dĞƌŵŝŶĂƟŽŶĨŽƌĂƵƐĞ͘ ^ŽƵƌĐĞǁĞůůŵĂLJƚĞƌŵŝŶĂƚĞƚŚŝƐŐƌĞĞŵĞŶƚƵƉŽŶƉƌŽǀŝĚŝŶŐǁƌŝƩĞŶŶŽƟĐĞŽĨ ŵĂƚĞƌŝĂůďƌĞĂĐŚƚŽ^ƵƉƉůŝĞƌ ͘EŽƟĐĞŵƵƐƚĚĞƐĐƌŝďĞƚŚĞďƌĞĂĐŚŝŶƌĞĂƐŽŶĂďůĞĚĞƚĂŝůĂŶĚƐƚĂƚĞƚŚĞ ŝŶƚĞŶƚƚŽƚĞƌŵŝŶĂƚĞƚŚĞŐƌĞĞŵĞŶƚ͘hƉŽŶƌĞĐĞŝƉƚŽĨEŽƟĐĞ͕ƚŚĞ^ƵƉƉůŝĞƌǁŝůůŚĂǀĞϯϬĐalendar days ŝŶǁŚŝĐŚŝƚŵƵƐƚĐƵƌĞƚŚĞďƌĞĂĐŚ͘d ĞƌŵŝŶĂƟŽŶƉƵƌƐƵĂŶƚƚŽƚŚŝƐƐĞĐƟŽŶǁŝůůŶŽƚƌĞůŝĞǀĞƚŚĞ^ƵƉƉůŝĞƌ͛Ɛ ŽďůŝŐĂƟŽŶƐƵŶĚĞƌƚŚŝƐŐƌĞĞŵĞŶƚĨŽƌany ƚƌĂŶƐĂĐƟŽŶƐĞŶƚĞƌĞĚǁŝƚŚWĂƌƟĐŝƉĂƟŶŐ ŶƟƟĞƐƚŚƌŽƵŐŚƚŚĞ
ĚĂƚĞŽĨƚĞƌŵŝŶĂƟŽŶ͕ŝŶĐůƵĚŝŶŐƌĞƉŽƌƟŶŐĂŶĚƉĂLJŵĞŶƚŽĨĂƉƉůŝĐĂďůĞĚŵŝŶŝƐƚƌĂƟǀĞ&ĞĞƐ͘
ƌƟĐůĞϯ͗
^ƵƉƉůŝĞƌKďůŝŐĂƟŽŶƐƚŽWĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐ
dŚĞd ĞƌŵƐŝŶƚŚŝƐƌƟĐůĞϯƌĞůĂƚĞƐƉĞĐŝĮĐĂůůLJƚŽ^ƵƉƉůŝĞƌĂŶĚĂWĂƌƟĐŝƉĂƟŶŐ ŶƟƚLJǁŚĞŶĞŶƚĞƌŝŶŐ
ƚƌĂŶƐĂĐƟŽŶƐƵƟůŝnjŝŶŐƚŚĞ'ĞŶĞƌĂůd ĞƌŵƐĞƐƚĂďůŝƐŚĞĚŝŶƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚ͘ƌƟĐůĞϭ'ĞŶĞƌĂůdĞƌŵƐ ĐŽŶƚƌŽůŽǀĞƌĂŶLJĐŽŶŇŝĐƚǁŝƚŚƚŚŝƐƌƟĐůĞ ϯ͘tŚĞƌĞƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚŝƐƐŝůĞŶƚŽŶĂŶLJƐƵďũĞĐƚ͕ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJĂŶĚ^ƵƉƉůŝĞƌƌĞƚĂŝŶƚŚĞĂďŝůŝƚLJƚŽŶĞŐŽƟĂƚĞŵƵƚƵĂůůLJĂĐĐĞƉƚĂďůĞƚĞƌŵƐ.
1) YƵŽƚĞƐƚŽWĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐ͘ ^ƵƉƉůŝĞƌƐĂƌĞĞŶĐŽƵƌĂŐĞĚƚŽƉƌŽǀŝĚĞĂůůƉƌŝĐŝŶŐŝŶĨŽƌŵĂƟŽŶ ƌĞŐĂƌĚŝŶŐƚŚĞƚŽƚĂůĐŽƐƚŽĨĂĐƋƵŝƐŝƟŽŶǁŚĞŶƋƵŽƟŶŐƚŽĂWĂƌƟĐŝƉĂƟŶŐ ŶƟƚLJ͘^ƵƉƉůŝĞƌƐĂŶĚ
WĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐĂƌĞĞŶĐŽƵƌĂŐĞĚƚŽŝŶĐůƵĚĞĂůůĐŽƐƚƐƉĞĐŝĮĐĂůůLJĂƐƐŽĐŝĂƚĞĚǁŝƚŚŽƌŝŶĐůƵĚĞĚǁŝthin ƚŚĞ^ƵƉƉůŝĞƌƐƉƌŽƉŽƐĂůĂŶĚ/ŶĐůƵĚĞĚ^ŽůƵƟŽŶƐ ǁŝƚŚŝŶƚƌĂŶƐĂĐƟŽŶĚŽĐƵŵĞŶƚƐ.
2) ^ŚŝƉƉŝŶŐ͕ĞůŝǀĞƌLJ͕ĐĐĞƉƚĂŶĐĞ͕ZĞũĞĐƟŽŶ͕ĂŶĚtĂƌƌĂŶƚLJ͘ ^ƵƉƉůŝĞƌ͛ƐƉƌŽƉŽƐĂůŵĂLJŝŶĐůƵĚĞƉƌŽƉŽƐĞĚ ƚĞƌŵƐƌĞůĂƟŶŐƚŽƐŚŝƉƉŝŶŐ͕ĚĞůŝǀĞƌLJ͕ŝŶƐƉĞĐƟŽŶ͕ĂŶĚĂĐĐĞƉƚĂŶĐĞͬƌĞũĞĐƟŽŶ and other relevant terms ŽĨƚĞŶĚĞƌĞĚ^ŽůƵƟŽŶƐ͘^ƵƉƉůŝĞƌĂŶĚWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŵĂLJŶĞŐŽƟĂƚĞĮŶĂůƚĞƌŵƐĂƉƉƌŽƉƌŝĂƚĞĨŽƌƚŚĞ
ƐƉĞĐŝĮĐƚƌĂŶƐĂĐƟŽŶƌĞůĂƟŶŐƚŽnon-ĂƉƉƌŽƉƌŝĂƟŽŶ͕ƐŚŝƉƉŝŶŐ͕ĚĞůŝǀĞƌLJ͕ŝŶƐƉĞĐƟŽŶ͕ ĂĐĐĞƉƚĂŶĐĞͬƌĞũĞĐƟŽŶŽĨƚĞŶĚĞƌĞĚ ^ŽůƵƟŽŶƐ͕ĂŶĚǁĂƌƌĂŶƚLJĐŽǀĞƌĂŐĞĨŽƌ/ŶĐůƵĚĞĚ^ŽůƵƟŽŶƐ͘^ƵĐŚ ƚĞƌŵƐŵĂLJŝŶĐůƵĚĞ͕ďƵƚĂƌĞŶŽƚůŝŵŝƚĞĚƚŽ͕ĐŽƐƚƐ͕ƌŝƐŬŽĨůŽƐƐ͕ƉƌŽƉĞƌƉĂĐŬĂŐŝŶŐ͕ŝŶƐƉĞĐƟŽŶƌŝŐŚƚƐĂŶĚ ƟŵĞůŝŶĞƐ͕ĂĐĐĞƉƚĂŶĐĞŽƌƌĞũĞĐƟŽŶƉƌŽĐĞĚƵƌĞƐ͕ĂŶĚƌĞŵĞĚŝĞƐĂƐŵƵƚƵĂůůLJĂŐƌĞĞĚŝŶĐůƵĚĞŶŽƟĐĞ ƌĞƋƵŝ
rements, replacement, return or exchange procedures, and associated costs.
3) ƉƉůŝĐĂďůĞdĂdžĞƐ͘ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŝƐƌĞƐƉŽŶƐŝďůĞĨŽƌŶŽƟĨLJŝŶŐƐƵƉƉůŝĞƌŽĨŝƚƐƚĂdž-exempt status and ĨŽƌƉƌŽǀŝĚŝŶŐ^ƵƉƉůŝĞƌǁŝƚŚĂŶLJǀĂůŝĚƚĂdž-ĞdžĞŵƉƟŽŶĐĞƌƟĮĐĂƟŽŶ;ƐͿŽƌƌĞůĂƚĞĚĚŽĐƵŵĞŶƚĂƟŽŶ͘
4) KƌĚĞƌŝŶŐWƌŽĐĞƐƐĂŶĚWĂLJŵĞŶƚ͘ ^ƵƉƉůŝĞƌ͛ƐŽƌĚĞƌŝŶŐƉƌŽĐĞƐƐĂŶĚĂĐĐĞƉƚĂďůĞĨŽƌŵƐŽĨƉĂLJŵĞŶƚĂƌĞ ŝŶĐůƵĚĞĚǁŝƚŚŝŶŝƚƐWƌŽƉŽƐĂů͘WĂƌƟĐŝƉĂƟŶŐ
ŶƟƟĞƐǁŝůůďĞƐŽůĞůLJƌĞƐƉŽŶƐŝďůĞĨŽƌƉĂLJŵĞŶƚƚŽ^ƵƉƉůŝĞƌ ĂŶĚ^ŽƵƌĐĞǁĞůůǁŝůůŚĂǀĞŶŽůŝĂďŝůŝƚLJĨŽƌĂŶLJƵŶƉĂŝĚŝŶǀŽŝĐĞŽĨĂŶLJWĂƌƟĐŝƉĂƟŶŐ ŶƟƚy.
5) dƌĂŶƐĂĐƟŽŶŽĐƵŵĞŶƚƐ͘ WĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŵĂLJƌĞƋƵŝƌĞƚŚĞƵƐĞŽĨŝƚƐŽǁŶĨŽƌŵƐƚŽĐŽŵƉůĞƚĞ
ƚƌĂŶƐĂĐƟŽŶƐĚŝƌĞĐƚůLJǁŝƚŚ^ƵƉƉůŝĞƌƵƟůŝnjŝŶŐƚŚĞƚĞƌŵƐĞƐƚĂďůŝƐŚĞĚŝŶƚŚŝƐŐƌĞĞŵĞŶƚ͘^ƵƉƉůŝĞƌ͛Ɛ
795
050625-PBL
v052824 13
ƐƚĂŶĚĂƌĚĨŽƌŵĂŐƌĞĞŵĞŶƚƐŵĂLJďĞŽīĞƌĞĚĂƐƉĂƌƚŽĨŝƚƐWƌŽƉŽƐĂů͘^ƵƉƉůŝĞƌĂŶĚWĂƌƟĐŝƉĂƟŶŐ ŶƟƚLJ
ŵĂLJĐŽŵƉůĞƚĞĂŶĚĚŽĐƵŵĞŶƚƚƌĂŶƐĂĐƟŽŶƐƵƟůŝnjŝŶŐĂŶLJƚLJƉĞŽĨƚƌĂŶƐĂĐƟŽŶĚŽĐƵŵĞŶƚƐĂƐŵƵƚƵĂůůLJ ĂŐƌĞĞĚ͘/ŶĂŶLJƚƌĂŶƐĂĐƟŽŶĚŽĐƵŵĞŶƚĞŶƚĞƌĞĚƵƟůŝnjŝŶŐƚŚŝƐŐƌĞĞŵĞŶƚ͕^ƵƉƉůŝĞƌĂŶĚWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŵƵƐƚŝŶĐůƵĚĞƐƉĞĐŝĮĐƌĞĨĞƌĞŶĐĞƚŽƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚďLJŶƵŵďĞƌĂŶĚƚŽWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͛ƐƵŶŝƋƵĞ^ŽƵƌĐĞǁĞůůaccount number.
6) ĚĚŝƟŽŶĂůdĞƌŵƐĂŶĚŽŶĚŝƟŽŶƐ WĞƌŵŝƩĞĚ͘ WĂƌƟĐŝƉĂƟŶŐ ŶƟƚLJĂŶĚ^ƵƉƉůŝĞƌŵĂLJŶĞŐŽƟĂƚĞĂŶĚ
ŝŶĐůƵĚĞĂĚĚŝƟŽŶĂůƚĞƌŵƐĂŶĚĐŽŶĚŝƟŽŶƐǁŝƚŚŝŶƚƌĂŶƐĂĐƟŽŶĚŽĐƵŵĞŶƚĂƟŽŶĂƐŵƵƚƵĂůůLJĂŐƌĞĞĚ͘^ƵĐŚ terms may supplant or supersede this Master Agreement when necessary and as solely determined ďLJWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͘^ŽƵƌĐĞǁĞůůŚĂƐĞdžƉƌĞƐƐůLJƌĞƐĞƌǀĞĚƚŚĞƌŝŐŚƚĨŽƌ^ƵƉƉůŝĞƌĂŶĚWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJƚŽĂĚĚƌĞƐƐĂŶLJŶĞĐĞƐƐĂƌLJƉƌŽǀŝƐŝŽŶƐǁŝƚŚŝŶƚƌĂŶƐĂĐƟŽŶĚŽĐƵŵĞŶƚƐŶŽƚĞdžƉƌĞƐƐůLJŝŶĐůƵĚĞĚ within this Master Agreement, including but not limited to trĂŶƐĂĐƟŽŶĐĂŶĐĞůůĂƟŽŶ͕ĚŝƐƉƵƚĞ ƌĞƐŽůƵƟŽŶ͕ŐŽǀĞƌŶŝŶŐůĂǁĂŶĚǀĞŶƵĞ͕ŶŽŶ-ĂƉƉƌŽƉƌŝĂƟŽŶ͕ŝŶƐƵƌĂŶĐĞ͕ĚĞĨĞŶƐĞĂŶĚŝŶĚĞŵŶŝƚLJ͕ĨŽƌĐĞ ŵĂũĞƵƌĞ͕and other material terms as mutually agreed.
7) ^ƵďƐĞƋƵĞŶƚŐƌĞĞŵĞŶƚƐĂŶĚ^ƵƌǀŝǀĂů͘ ^ƵƉƉůŝĞƌĂŶĚWĂƌƟĐŝƉĂƟŶŐ ŶƟƚLJŵĂLJĞŶƚĞƌŝŶƚŽĂƐĞƉĂƌĂƚĞ
ĂŐƌĞĞŵĞŶƚƚŽĨĂĐŝůŝƚĂƚĞůŽŶŐ-ƚĞƌŵƉĞƌĨŽƌŵĂŶĐĞŽďůŝŐĂƟŽŶƐƵƟůŝnjŝŶŐƚŚĞƚĞƌŵƐŽĨƚŚŝƐDĂƐƚĞƌ ŐƌĞĞŵĞŶƚĂƐŵƵƚƵĂůůLJĂŐƌĞĞĚ͘^ƵĐŚĂŐƌĞĞŵĞŶƚƐŵĂLJƉƌŽǀŝĚĞĨŽƌĂƉĞƌĨŽƌŵĂŶĐĞƉĞƌŝŽĚĞdžƚĞŶĚŝŶŐ beyond thĞĨƵůůƚĞƌŵŽĨƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚ ĂƐĚĞƚĞƌŵŝŶĞĚŝŶƚŚĞĚŝƐĐƌĞƟŽŶŽĨWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ.
8) WĂƌƟĐŝƉĂƟŶŐĚĚĞŶĚƵŵƐ͘ ^ƵƉƉůŝĞƌĂŶĚWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJŵĂLJĞŶƚĞƌĂWĂƌƟĐŝƉĂƟŶŐĚĚĞŶĚƵŵŽƌ
ƐŝŵŝůĂƌĚŽĐƵŵĞŶƚĞdžƚĞŶĚŝŶŐĂŶĚƐƵƉƉůĞŵĞŶƟŶŐƚŚĞƚĞƌŵƐŽĨƚŚŝƐDĂƐƚĞƌŐƌĞĞŵĞŶƚƚŽĨĂĐŝůŝƚĂƚĞ ĂĚŽƉƟŽŶĂƐŵĂLJďĞƌĞƋƵŝƌĞĚďLJĂWĂƌƟĐŝƉĂƟŶŐ
ŶƟƚLJ͘
Sourcewell PB Loader Corporation
LJ͗ͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺ LJ͗ͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺ :ĞƌĞŵLJ^ĐŚǁĂƌƚnj Jason Thompson
dŝƚůĞ͗ŚŝĞĨWƌŽĐƵƌĞŵĞŶƚKĨĨŝĐĞƌ dŝƚůĞ͗President
ĂƚĞ͗ͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺ
ĂƚĞ͗ͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺͺ
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Bid Number: RFP 050625 Vendor Name: PB Loader Corporation
815
PURCHASERS NAME
ADDRESS
CITY, STATE, ZIP
PHONE
EMAIL
SALESPERSON
DISCLAIMER OF CONSEQUENTIAL DAMAGES: To the fullest extent permitted by law, Purchaser shall not be entitled to recover from Dealer any damages for loss to property or persons or damages for loss of use, loss of time, loss of profits, loss of income, or any other consequential or incidental damages.
INITIAL
DISCLAIMER OF WARRANTIES: Unless Dealer furnishes Purchaser with a separate written warranty or service contract made by Dealer on its own behalf, Dealer hereby disclaims all warranties, express or implied, including any implied warranties of quality, workmanship, design, merchantability, suitability and fitness for any particular purpose on all goods and services sold by Dealer. All used vehicles are sold on an "AS-IS, WHERE-IS" basis. Any warranty on any new vehicle or used vehicle still subject to a Manufacturer's warranty is that made by the Manufacturer only. All warranties, if any, by Manufacturers and suppliers are theirs, not Dealer's, and only the Manufacturers and suppliers shall be liable for performance under such warranties.
INITIAL
THIS CONTRACT IS SUBJECT TO ADDITIONAL PROVISIONS SET FORTH ON THE NEXT TWO PAGES HEREOF, THE SAME BEING INCORPORATED HEREIN BY REFERENCE. Pu rchaser a grees that this Quote includes all of the terms and conditions. This quote cancels and supercedes any prior agreement and as of the date hereof comprises the complete and exclusi ve stat ement of the terms of the agreement relating to the subject matters covered he reby, and that THIS QUOTE SHALL NOT BECOME BINDING UNTIL ACCEPTED BY THE DEALER OR HIS AUTHORIZED REPRESENTATIVE. THIS SALES QUOTE CAN BE TERMINATED BY DEALER AT ANY TIME AT ITS SOLE DISCRETION. Purchaser by his execution of this Quote acknowledges that he has read the terms and conditions and has received a true copy of this Quote.
INITIAL
SALESPERSON
PURCHASER
ACCEPTED BY SALES MANAGER
DATE
DATE
DATE
**SALES QUOTE NOT VALID UNLESS SIGNED BY AN AUTHORIZED SALES MA NAG ER* * X
X
X
TRADE-IN ALLOWANCE
BALANCE OWED ON TRADE
CASH REFUND TO CUSTOMER
NET TRADE IN ALLOWANCE
CASH DOWN PAYMENT
YEAR
BODY TYPE
BALANCE OWED TO
ADDRESS
MAKE MODEL
VIN
AMOUNT GOOD UNTIL
LIENHOLDER
FET
SALE PRICE
ADMIN FEE
ELT FEE / DOCUMENTATION FEE
DELIVERY
TIRE TAX
SALES TAX
EXTENDED WARRANTY
LICENSE/TITLE FEES
TOTAL CASH DELIVERED PRICE
TOTAL DOWN PAYMENT
UNPAID CASH BALANCE DUE ON DELIVERY
SPECIAL INSTRUCTIONS
USED VEHICLE TRADE-IN/OTHER CREDITS
|
OR VEHICLE PRIVILEGE & USE TAX
ESTIMATED OR CAT
PLEASE APPLY THIS DEPOSIT TO THE REQUESTED VEHICLE
ESTIMATED DELIVERY DATE
MISCELLANEOUS
QTY
SALES quote
The sales tax and license fees are an estimated amount based on the information provided at the time of issuance and are subject to change. Finalized amounts due will be reflected in the final invoice. /in1/
/in1/
/in1/
/sn1/
/sn4/
/sn3/
/dn1/
/dn4/
/dn3/
/op1/
BINDING ARBITRATION: Dealer has opted to use binding arbitration, in lieu of litigation, to resolve disputes arising under this Sales Quote and the relationship between Dealer and its customers/purchasers. To that end, it has agreed to be bound to the terms and conditions of the arbitration agreement that is attached to this sales quote, which by this reference is incorporated herein as if set forth in the Sales Quote in full. By executing this Sales Quote, th e c ustomer/purchaser ack nowledges receipt of the ar bitration agreement and agrees to be bound by its terms and conditions.
ACCEPT OR DECLINE/op1/
State Regulatory Addendum must be executed along with the sales quote and other terms and conditions at final sale.
Warranty Months Miles Coverage
Extended 72 months 300,000 Mack Ultra Service Contract
SEE SCHEDULE A
City of Ontario
303 East B Street
Ontario, CA, 91746
(909) 385-2000
Dustin Coffey
[email protected]
($0.00)
$360.00
$0.00
$0.00
$153,685.77
$0.00
$0.00
$0.00
$160,680.00
$0.00
$2,297,512.74
($0.00)
$2,297,512.74
15000 Firestone Blvd La Mirada, CA 90638
714-521-9806
[email protected]
$1,485.00
$0.00
$1,981,302.00
12/15/2026
3 Sales Tax: Ontario CA
Price includes LRe chassis-Amrep ASL Body-Heliox 60kw Mobil Charger/ Delivery lead time 356 days from Issue of PO.
816
QUOTATION
DATE: 12/3/2025
CUSTOMER: CITY OF ONTARIO TERMS: NET 30
F.O.B: CUSTOMER
SOURCEWELL MEMBER ACCOUNT # 34482
SUBJECT: FORD F-650 WITH BIN CLEANING TRUCK - 2ND UNIT QTY PART NO. DESCRIPTION PRICE EXTENSION
PB LOADER CONTRACT NO. 050625-PBL
SOURCEWELL CONTRACT MARKET PRICES
NON-LISTED BIN CLEANING TRUCK AT MARKET PRICE
2 $290,265.00 $580,530.00
SUBTOTAL: $580,530.00
MULTI-UNIT DISCOUNT: ($3,500.00)
TOTAL WITH DISCOUNT: $577,030.00
SALES TAX (8.75% ): $50,490.13
CA TIRE RECYCLING FEE: $21.00
GRAND TOTAL FOR TWO (2) UNITS: $627,541.13
NOTES:
NO. 12965
1. PRICE INCLUDES DELIVERY AND DMV REGISTRATION.
2. 25% DEPOSIT REQUIRED AT TIME OF ORDER.
3. CHASSIS PRICE SUBJECT TO MODEL YEAR SURCHARGES AND ESCALATORS.
4. PURCHASE ORDERS TO BE MADE OUT TO PB LOADER CORPORATION.
BIN CLEANING TRUCK COMPLETE WITH:
CHASSIS:
2027 F-650 4X2 SD REGULAR CAB DUAL REAR WHEEL CHASSIS WITH:
- 7.3L 2V DEVCT NA PFI V8 GAS ENGINE WITH 335 HP 3750 RPM - 50-STATE EMISSIONS
- FORD TORQSHIFT HD 6-SPEED AUTOMATIC TRANSMISSION W/ PTO PROVISION - HYDRAULIC BRAKES W/ TRACTION CONTROL
- 22.5” X 8.25” WHITE POWDER COATED STEEL WHEELS
- TWO (2) 255/70R22.5H GOODYEAR ENDURANCE RSA (566 REV/MILE) FRONT TIRES - FOUR (4) 255/70R22.5H GOODYEAR FUEL MAX RSA (563 REV/MILE) REAR TIRES - 26,000 LBS. GVWR (8,500 LBS. FRONT AXLE/ 17,500 LBS. REAR WITIH SHOCKS) - 6.14 AXLE RATIO
- 218” WHEELBASE/ 144” CAB TO AXLE
- 50-GALLON STEEL FUEL TANK, LH FRAMERAIL
- 240 AMP ALTERNATOR
- JUMP START STUD, REMOTE MOUNTED
- TWO (2) 900 CCA BATTERIES IN STEEL BOX
- 102 DBA BACKUP ALARM
- GREY VINYL 30/0/30 AIR RIDE DRIVER (INTEGRAL AIR PUMP) & FIXED PASSENGER W/CONSOLETTE - PREFERRED EQUIPMENT PACKAGE 600A**
- REAR VIEW CAMERA W/MIRROR DISPLAY
- ENHANCED CLUSTER W/HIGH-LEVEL 8-INCH DISPLAY
- POWER EQUIPMENT GROUP - (INCLUDED IN (90A) APPEARANCE GROUP) - FOUR BODY BUILDER SWITCHES - MOUNTED IN CENTER INSTRUMENT PANEL - RADIO: AM/FM STEREO W/2 SPEAKERS, USB INPUT, CLOCK DISPLAY AND BLUETOOTH - MIRRORS, DUAL - HEATED & MOTORIZED RECTANGULAR, XL2020 - 102" WIDTH - OXFORD WHITE EXTERIOR
BIN CLEANING SYSTEM:
SPARKLING BINS PTO DRIVEN COMMERCIAL & RESIDENTIAL BIN/ DUMPSTER CLEANING SYSTEM WITH:
- 625 GALLONS CLEAN WATER TANK – 525 GALLONS HOLDING TANK - PTO POWERED HIGH SPEED COMMERCIAL AND RESIDENTIAL (2-1) LIFTER - LIFTS 2, 4, 6, 8, 10-YARD DUMPSTERS & RESIDENTIAL BINS WITH WIRELESS REMOTE - ALUMINUM SIDE PANELS WITH DOORS 9FT X 5FT, WITH OPEN DOOR ALERT SENSOR SYSTEM - 3 VANGUARD ENGINES RATED AT 26.5HP
- SPRING-LOADED 25FT HOSE REEL WITH 18” TRIGGER GUN AND 25FT HOSE FOR EXTERIOR CLEANING OF BINS - STAINLESS STEEL HOSE REEL WITH 100FT HOSE, TRIGGER GUN - 48” LANCE FOR PRESSURE WASHING - MASTER KILL SWITCH
- MOTORIZED ADJUSTABLE 3 PROPRIETARY BOLONDI EXTREME STAINLESS STEEL HI TEMP @ 3,500PSI CLEANING
HEADS TO ACCOMMODATE DIFFERENT SIZE DUMPSTERS AND RESIDENTIAL BINS - WINTERIZING SYSTEM
- 2 FRONT/2REAR COMMERCIAL STROBE LIGHTS
- TRUCK WRAP
- ALUMINUM DIAMOND PLATE BULKHEAD 18” X 8’
- ONE ADDITIONAL STROBE LIGHT
- INSTALLATION
PB Loader Corporation
5778 W. Barstow • Fresno, California 93722-5024 • Telephone (559) 277-7370 • Fax (559) 277-7375 Toll free 800-350-8521 • Web www.pbloader.com 817
Department: Community Life & Culture
Prepared By: Danielle Guevara
Department:
Prepared By: Danielle Guevara
Staff Member Presenting: Helen McAlary,
Executive Director Community Life and Culture
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 7
SUBJECT:
AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH SPORTS FACILITIES COMPANIES, INC. FOR CONSULTING SERVICES
CITY OF ONTARIO
Agenda Report
February 17, 2026
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council authorize the City Manager or his designee to execute Amendment No. 1 to the Professional Services Agreement with Sports Facilities Companies, Inc. of Clearwater, Florida, for consulting services and site activation for the Ontario Sports Empire; in the amount of $1,023,076 for a total not-to-exceed contract amount of $1,802,176.
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Operate in a Businesslike Manner
Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT:
The City has a Professional Services Agreement in the amount of $779,100 with Sports Facilities Companies, Inc., for pre-opening services for the Ontario Sports Empire. With Ontario Sports Empire opening in Fall 2026, the contractor must transition to on-site activation. The proposed Amendment No. 1 increases the Professional Services Agreement from $779,100 to $1,023,076 with a new not-to-exceed amount of $1,802,176 to pay for operations through Fall 2026, when the Operating and Management Agreement commences. If approved, additional appropriations will be included in the General Fund at a future quarterly budget update to City Council for approval as needed.
BACKGROUND & ANALYSIS:
On December 19, 2023, City Council approved a Professional Services Agreement with Sports Facilities Companies, Inc. in the amount of $779,100 for consulting services through December 31, 2026. Since that time, they have served as a trusted partner, provided critical guidance on development and operational cost projections, coordinated with user groups to begin advanced scheduling, and assisted in the development of a marketing strategy. Their extensive experience managing sports complexes nationwide, along with strong industry relationships, positions the Ontario Sports Empire for a successful launch. 818
Additional funding is required to cover pre-opening expenses to ensure the successful activation of the newly constructed Ontario Sports Empire and to facilitate a smooth transition from construction to full operations. These funds would support pre-opening activities ahead of the planned Fall 2026 opening, including recruiting and hiring key staff, establishing operating procedures, securing bookings and events in advance, implementing technology and financial systems, and generating early awareness and demand for the facility. Pre-Opening costs include salaries for the General Manager, Director of Marketing, IT Manager, Programs Manager, Events Manager, and Finance Manager, as well as marketing, advertising, and general office expenses related to pre-opening operations. Providing adequate funding at this stage helps minimize operational risk, supports revenue generation from day one, and positions the facility for long-term success and sustainability.
Staff recommends approval of Amendment No. 1 with Sports Facilities Management, LLC. 819
BB&K (2024) 1 AMENDMENT TO NON-CONSTRUCTION CONTRACT
46700.00100\9423414
PAUL S. LEON
MAYOR
ALAN D. WAPNER
MAYOR PRO TEM
JIM W. BOWMAN
DEBRA PORADA
DAISY MACIAS
COUNCIL MEMBERS
SHEILA MAUTZ
CITY CLERK
JAMES R. MILHISER
CITY TREASURER
SCOTT OCHOA
CITY MANAGER
AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ONTARIO AND
SPORTS FACILITIES MANAGEMENT, LLC
1. Parties and Date.
This Amendment No. 1 to the Agreement (as defined herein) is made and entered as of ____________, by and between the City of Ontario (“City”) and Sports Facilities Management, LLC, a Florida limited liability company (“Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. T he City and Consultant have entered into an agreement entitled “Professional Services Agreement” dated 12/19/2023 (“Agreement”).
2.2 Amendment Purpose . T he City and Consultant desire to amend the Agreement to provide compensation for pre-opening costs associated with the Ontario Sports Empire , increasing the compensation by $1,023,076 for a new not-to-exceed amount of $1,802,176.
2.3 Amendment Authority . This Amendment No. 1 is authorized pursuant to Section
3.1.3 of the Agreement.
3. Terms.
3.1 Amendment. Section 3.1.1 of the Agreement is hereby amended in its entirety to read as follows:
"General Scope of Services"
Consultant promises and agrees to furnish the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional sports facility planning consulting services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” referenced in the agreement dated 12/19/2023. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits hereto and 820
BB&K (2024) 2 AGREEMENT FOR NON-CONSTRUCTION CONTRACT
46700.00100\9423414
incorporated in the agreement dated 12/19/2023, and all applicable local, state, and federal laws, rules, and regulations. In addition, the Services shall include pre -opening activities required to prepare the newly constructed facility for public use and full operations, including but not limited to the recruitment, hiring, onboarding, and training of required staff; development and implementation of operational procedures; coordination and payment of pre -opening costs and expenses; setup of systems, equipment, and furnishings; and all other actions reasonably necessary to ensure the facility is fully operational and prepared to open to the public. Attachment A attached hereto and incorporated herein by reference.
3.2 Continuing Effect of Agreement . Except as amended by this Amendment No. 1, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 1.
3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1.
3.4 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5 Integration. This Amendment represents the entirety of the Parties’ understanding relating to the subject of this Amendment, including written or verbal communications between the Parties, which shall have no relevance unless expressly incorporated herein. This is an integrated amendment.
[SIGNATURES ON FOLLOWING PAGE]
821
BB&K (2024) 3 AGREEMENT FOR NON-CONSTRUCTION CONTRACT
46700.00100\9423414
SIGNATURE PAGE FOR AMENDMENT NO. 1 TO PROFESSIONAL SERVICES
AGREEMENT BETWEEN THE CITY OF ONTARIO
AND SPORTS FACILITIES MANAGEMENT, LLC
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 1 as of the day and year first above written.
CITY OF ONTARIO SPORTS FACILITIES MANAGEMENT,
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:
City Clerk
822
Nov-25 Dec-25 Jan-26 Feb-26 Mar-26 Apr-26 May-26 Jun-26 Total FY 2025 Jul-26 Aug-26 Sep-26 Oct-26 Total FY 2026 Budget Budget Budget Budget Budget Budget Budget Budget Budget Budget Budget Budget 60100 Advertising / Marketing -
60110 Website - - 4,000.00 - - - 4,000 150.00 150.00 150.00 150.00 600 60120 Assets - - - 5,000.00 - - 1,000.00 - 6,000 1,833.33 1,833.33 1,833.33 1,833.33 7,333 60130 Advertising - - 4,500.00 4,500.00 4,500.00 4,500.00 7,375.00 7,375.00 32,750 7,375.00 7,375.00 7,375.00 7,375.00 29,500 60140 Dues & Subscriptions 250.00 250.00 500.00 500.00 500.00 500.00 2,500 1,750.00 1,750.00 1,750.00 1,750.00 7,000 60150 Business Development - - - 25,000.00 25,000 60199 Total Advertising/Marketing - - 8,750.00 9,750.00 5,000.00 5,000.00 8,875.00 7,875.00 45,250 11,108.33 11,108.33 11,108.33 36,108.33 69,433 60299 Total Bank & Other Service Charges - - - - - - - - - - - - - - 60300 General Office Expenses -
60310 Business Licenses and Permits - - 7,500.00 - 7,500.00 15,000 60315 Decorations - Office/Building - 2,500.00 2,500 60320 Dues and Subscriptions - 1,500.00 1,500.00 2,000.00 5,000 1,500.00 1,500 60325 Employee Training & Continued Education - 7,500.00 7,500 60330 Employee Uniform - 2,000.00 10,000.00 12,000 60335 IT & Office Equipment 2,000.00 70.00 70.00 70.00 70.00 70.00 70.00 70.00 2,490 6,070.00 2,070.00 6,070.00 4,070.00 18,280 60340 Meals & Entertainment 300.00 300.00 600 300.00 300 60345 Office Printing & Equipment - 200.00 200.00 400 60350 Office Supplies - 416.67 416.67 750.00 750.00 2,333 60355 POS Fees 500.00 500.00 500.00 500.00 500.00 2,500 500.00 500.00 500.00 500.00 2,000 60360 POS Software & Equipment 6,375.00 6,375 - 60365 Postage & Delivery - 250.00 250.00 250.00 750 60370 Travel 3,000.00 3,000.00 6,000 3,000.00 3,000 60399 Total General Office Expenses 5,300.00 70.00 6,445.00 5,370.00 2,070.00 570.00 2,570.00 570.00 22,965 9,186.67 18,236.67 17,570.00 20,570.00 65,563 60499 Total Insurance - - - - - - - - - - - - - - 60500 Management Company -
60520 Management Company Travel 2,000.00 2,000.00 2,000.00 2,000.00 8,000 2,000.00 2,000.00 5,000.00 9,000 60530 Deferred Management Incentive - - 60599 Total Management Company - - 2,000.00 - 2,000.00 - 2,000.00 2,000.00 8,000 - 2,000.00 2,000.00 5,000.00 9,000 60600 Salaries and Wages -
60610 Management Salaries 12,916.67 12,916.67 12,916.67 12,916.67 12,916.67 12,916.67 20,416.67 20,416.67 118,333 35,000.00 50,350.00 60,700.00 60,700.00 206,750 60620 Hourly Wages - -
60630 Employee Bonus - Reloc/Recruit - - - - 60699 Total Salaries and Wages 12,916.67 12,916.67 12,916.67 12,916.67 12,916.67 12,916.67 20,416.67 20,416.67 118,333 35,000.00 50,350.00 60,700.00 60,700.00 206,750 60700 Payroll Expenses -
60710 Cell Phone Reimbursements 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 800 400.00 500.00 800.00 800.00 2,500 60720 Employer Payroll Taxes 1,420.83 1,420.83 1,420.83 1,420.83 1,420.83 1,420.83 2,245.83 2,245.83 13,017 3,850.00 5,538.50 6,677.00 6,677.00 22,742 60730 Health Insurance 300.00 300.00 300.00 300.00 300.00 300.00 300.00 300.00 2,400 1,200.00 1,500.00 2,400.00 2,400.00 7,500 60740 New Hire Screening Fees 292.00 292 292.00 292.00 292.00 292.00 1,168 60750 Payroll Software/Processing Fees 20.00 20.00 20.00 20.00 20.00 20.00 20.00 20.00 160 20.00 20.00 20.00 20.00 80 60760 Retirement Employer Match - - - - 60770 Work Comp Ins 276.00 276.00 276.00 276.00 276.00 276.00 276.00 276.00 2,208 1,138.40 1,258.40 1,258.40 1,258.40 4,914 60799 Total Payroll Expenses 2,116.83 2,116.83 2,116.83 2,116.83 2,116.83 2,116.83 2,941.83 3,233.83 18,877 6,900.40 9,108.90 11,447.40 11,447.40 38,904 61100 Facility Maintenance -
61110 Building Ops Maint. - -
61115 Decorations & Graphics - - 25,000.00 25,000 61120 Fuel - - - - - 61125 Grounds Exterior Maint. - - - 61130 Hardware and Supplies - - - 61135 HVAC - Parts & Repairs - - - 61140 Janitorial Expense - - 15,000.00 15,000 61145 Kitchen Equipment - - - 61150 Locker Room - - - 61155 Pest Control - - - 61160 Powered Equipment - - - 61165 Preventative Maintenance - - - 61170 Retail Equipment - - - 61175 Safety Inspections & Alarm Expense - - - 61180 Safety Supplies - - - 10,000.00 10,000 61185 Sports Equipment - - 10,000.00 10,000 61190 Storage - -
61195 Tools and Equipment - - 10,000.00 10,000 61199 Total Facility Maintenance - - - - - - - - - - - 55,000.00 15,000.00 70,000 61299 Total Utilities - - - - - - - - - - - - - - 69999 TOTAL Expenses 20,333.50 15,103.50 32,228.50 30,153.50 24,103.50 20,603.50 36,803.50 34,095.50 213,425.00 62,195.40 90,803.90 157,825.73 148,825.73 459,650.76 NET OPERATING INCOME (20,333.50) (15,103.50) (32,228.50) (30,153.50) (24,103.50) (20,603.50) (36,803.50) (34,095.50) (213,425.00) (62,195.40) (90,803.90) (157,825.73) (148,825.73) (459,651) 41000 Other Income (Below NOI) -
41100 Subsidy - -
41200 Subsidy Earned - -
41300 Interest - -
41400 Other - -
41999 Total Other Income (Below NOI) - - - - - - - - - - - - - - 51000 Other COGS -
51100 Interest - -
51200 Contingency - -
51999 Total Other COGS - - - - - - - - - - - - - - 70000 Other Expenses -
70100 Other Expenses - 350,000.00 350,000 70199 Total Other Expenses - - - - - - - - - - - - 350,000.00 350,000 NET INCOME (20,333.50) (15,103.50) (32,228.50) (30,153.50) (24,103.50) (20,603.50) (36,803.50) (34,095.50) (213,425.00) (62,195.40) (90,803.90) (157,825.73) (498,825.73) (809,651) Attachment A - Pre-Opening Operating Costs
823
Department: Budget
Prepared By: Evan Erickson
Staff Member Presenting: Armen Harkalyan,
Executive Director of Finance
Approved By:
Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 8
SUBJECT:
FY 2025-26 MID-YEAR BUDGET UPDATE
CITY OF ONTARIO
Agenda Report
February 17, 2026
SECTION:
CONSENT CALENDAR
RECOMMENDATION:
That the City Council
take the following actions:
A
.
Approve the budget adjustments and recommendations as presented in the Fiscal Year 2025- 26 Mid-Year Budget Update Report (Exhibit A);
B
.
Consider and adopt a
Resolution amending the list of Deputy City Treasurers authorized to invest City funds in the Local Agency Investment Fund (LAIF) and other eligible investment securities
; and
C
.
Consider and adopt a Reimbursement Resolution making a declaration of intent when issuing tax-exempt
obligations for the City's public capital improvements
THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:
Operate in a Businesslike Manner
FISCAL IMPACT:
The recommended actions will affect several fund budgets as outlined in the Fiscal Year 2025-26 Mid-Year Budget Update Report.
BACKGROUND & ANALYSIS:
The Mid-Year Budget Update Report for Fiscal Year 2025-26 reflects the Financial Services Agency's continued efforts to provide timely, accurate, and understandable financial information to assist the City Council with decision making and achievement of core goals.
All Funds have been reviewed in preparing this report. The emphasis of this report is on the General Fund, which funds the majority of government services including public safety, recreation, library, museum, parks, building, and planning.
The primary purposes of this report are to:
Revise the City's budget to reflect the City Council's actions taken since the beginning of the current fiscal year;
Recommend personnel changes to enhance program operations and efficiencies; Recommend budget adjustments that are consistent with the City Council goals and objectives; and
824
Comment on significant budget and economic trends which may impact fiscal year's budget development.
Fiscal Year 2025-26 Mid-Year Budget Update Recommendations Fiscal Year 2025-26 Mid-Year Budget Updates are routine in nature and comprised predominately by City Council actions taken since the First Quarter Budget Update. Mid-Year Budget Update includes proposed new expenditure budget requests, as well as revised revenue estimates for FY 2025-26. For the General Fund, the net result of these actions will bring the General Fund estimated available and unencumbered ending fund balance to $82.9 million or 20.9% of total appropriations. This amount achieves the goal set by City Council as a reserve for specific and defined emergency events (such as an earthquake or pandemic) and to address immediate needs in resources without impacting City services. This goal was temporarily decreased to 15% during the COVID pandemic but has since been brought back up to the previous set goal of 20%, effective July 1, 2023, with the goal of increasing the reserves up to 25% in future fiscal years.
General Fund Highlights
$3.0 million increase in projected Sales Tax revenue as a result of gains in online sales $2.7 million appropriations for Ontario Sports Empire Baseball Stadium Management Agreement (SMG)
$1.2 million appropriations for March Special Election costs $1.0 million appropriations for contractual services at Homeless Access Center $950 thousand additional appropriations for FY 2025-26 CalPERS Unfunded Accrued Liability (UAL) expenses due to rising pension costs
Other Funds (non- General Fund) Highlights
$17.9 million appropriations for Arena Entertainment District - East Plaza Project Construction $10.6 million appropriations for Flight Deck Ontario Sports Empire Baseball Stadium Restaurant Project Design and Construction
$10.7 million for Funding Transfer from Water Capital to Economic Development Activities Fund for the transfer of Fund Ownership of 13107-13131 South Campus Ave. $10.0 million additional appropriations for Municipal Services Center Relocation offsite improvements, bridge upgrades, and design plans phase
$6.8 million appropriations for the property acquisition loan regarding 13107-13131 South Campus Ave.
$5.6 million additional appropriations for North Vineyard Sanitary Sewer Project Construction $2.0 million additional appropriations for Sultana Avenue Storm Drain Project Construction $2.0 million contribution funding from the Fire Development Impact Fee (DIF) Fund to the Equipment Services/Fleet Fund for the purchase of 2 Fire Pumpers $75 thousand Transfer from the Capital Projects Fund to the Public Art Fund for the Mural Program
Interim budget updates also present recommendations for personnel and organizational changes necessary to enhance program operations and efficiencies. Current recommendations for this Mid- 825
Year report include reclassification changes, adds/deletes, and other modifications to the authorized full-time positions resulting in a zero net increase Citywide. More detail is presented in the attached Exhibit A under Recommended Personnel Changes section, pages 11 through 12 of the FY 2025-26 Mid-Year Budget Update Report.
CalPERS
The California State Public Employees Retirement System (CalPERS) is underfunded, primarily due to lower than projected earning rates combined with recent significant investment losses in the second quarter of the fiscal year. This has resulted in an estimated overall increase of over 105% in pension costs in the last five years. In addition, the City has experienced major increases in the CalPERS Unfunded Accrued Liability (UAL) payments over the last two years due to higher contractual labor increases than projected by CalPERS and substantial growth in number of active and retiree employees enrolled in CalPERS. The CalPERS UAL costs will increase from $0 in FY 2023- 24 to $14.9 million in FY 2026-27. This upward trend is projected to continue in the future and will have a significant impact on the City’s financial forecast.
Resolution Amending List of Deputy City Treasurers Authorized to Invest:
Recent staff movements have necessitated the need to update Resolutions identifying those individuals authorized to invest City funds and to transact with LAIF. The authorized individuals will be as follows: City Treasurer, Executive Director of Finance, Deputy Finance Director, Departmental Administrator (Financial Services Agency), and Chief Investment Officer.
Reimbursement Resolution Declaring Intent to Issue Tax-Exempt Obligations:
The City intends to finance the acquisition, construction, and installation of certain public capital improvements with the proceeds of the sale of tax-exempt obligations. Staff recommends approval of a Reimbursement Resolution, which permits the City to reimburse itself for certain costs incurred prior to the issuance of bonds, as allowed under the Internal Revenue Code.
Additionally, the City will continue borrowing from available fund balances in other City funds as interim financing source prior to bond issuance to offset the current Citywide capital project costs as referenced in Section 3.3 of the City's Debt Management Policy.
Economic Outlook
The following economic indicators are the most recent measures of economic activity.
Gross Domestic Product (GDP):
The broadest measure of economic output, increased at an annual rate of 4.4% in the third quarter of 2025, according to the most recent released estimate.
This was an increase compared to the second quarter of 2025, in which the real GDP increased by
3.8%. The increase in the third quarter primarily reflected increases in consumer spending, exports, government spending, and investment with decreases in imports. (Source: Bureau of Economic Analysis)
Unemployment Rate:
The national unemployment rate slightly increased to 4.5% in December 2025 compared to the 4.4% reported for November 2025. Comparing the current national rate to the previous year rate of 4.1%, it is a slight increase of 0.3%. California's unemployment rate slightly decreased to 5.5% in December 2025 compared to 5.6% in November 2025 while remaining 826
unchanged compared to prior year’s rate of 5.5%. Locally, the Inland Empire's unemployment rate decreased to 5.1% compared to 5.5% in November 2025. The Inland Empire's labor market has recovered from the COVID-19 pandemic and continues to remain steady and have a lower unemployment rate compared to the statewide rate. Since April 2020, the region has added over 435,000 jobs, which is more than the 228,700 jobs lost during the national lockdown. (Source: US Bureau of Labor Statistics)
Consumer Price Index (CPI):
This rate is utilized to track changes in the prices of goods and services and is a useful tool for tracking inflation or the cost of living. For November 2025, the Riverside-San Bernardino-Ontario metropolitan area's CPI rate increased by 4.5% over the last 12- month period. This increase in CPI mainly driven by increases in energy and gas prices. (Source: US Bureau of Labor Statistics).
Housing Market:
A continued shortage of homes for sale and high costs of borrowing continues to have a negative impact on the housing inventory and demand. With the recent declining of mortgage rates and the expectation that the rates will continue to decrease in 2026, it is anticipated that home sales will bounce back as buyers and sellers return to a more favorable housing market.
Statewide sales for existing single-family homes in December 2025 were 1.0% higher than they were for the same time period in the previous year. Overall, home sales in the Inland Empire for December 2025 increased 14.4% compared to the previous month, and a 0.9% increase compared to the same time period in the previous year. (Source: HdL Coren and Cone) Conclusion
As the City recovers from the last five years of economic disruption from the COVID pandemic, other challenges still exist with the continued conflicts worldwide; rising consumer good prices; continued high interest rates even with recent rate cuts by the Federal Reserve; the possibility of a recession as a result of the latest jobs report which indicates a much slower economy than previously reported; the unknown fiscal impacts from tariffs on the purchase of imported goods imposed by the federal administration;
and rising employee pension and medical costs
. Even with
the anticipated additional resources, the City will need to continue to practice fiscal discipline and establish proactive measures to safely navigate the current and upcoming fiscal challenges, as well as deliver an unparalleled level of service and commitment to our community.
The Adopted Operating Budget for Fiscal Year 2025-26, as modified through this Mid-Year Budget Update, reflects the City Council's continued commitment to support high quality public safety and municipal services, provides for the maintenance and expansion needs of the City's infrastructure and facilities, profiles an aggressive economic development strategy, and assures the investment and reinvestment of the City's resources into the community - all in the name of affording Ontario residents and businesses an exceptional quality of life. With the City Council's leadership and their prudent fiscal policies, the City's long-term financial health will further solidify its standing as the economic leader in the Inland Empire, and a formidable player in California and the nation. 827
Fiscal Year 2025-26
Mid-Year Budget Update
February 17, 2026
EXHIBIT A
828
Page
General Fund Revenues by Category 3
General Fund Expenditures by Category 4
General Fund Expenditures by Agency 5
General Fund Budget Summary 6
Citywide Expenditures by Category 7
Citywide Expenditures by Fund Type 8
General Fund Five-Year Financial Forecast 9
Authorized Full-Time Positions 10
Recommended Personnel Changes 11
Budget Adjustment Highlights 13
Detail of Recommended Budget Adjustments 17
Table of Contents
City of Ontario
Fiscal Year 2025-26
Mid-Year Budget Update Report
EXHIBIT A
829
FY 2025-26 First Quarter Mid-Year FY 2025-26 Actuals as of Category Adopted Budget Budget Update Budget Update Current Budget 12/31/2025 % Received Sales Tax 204,715,000$ -$ 3,000,000$ 207,715,000$ 68,378,879$ 32.9% Property Tax 112,750,000 - - 1
12,750,000 45,105,986 40.0%
Transient Occupancy Tax 18,000,000 - - 1
8,000,000 5,758,586 3
2.0%
Business License Tax 11,500,000 - - 1
1,500,000 4,524,654 3
9.3%
Parking Tax 4,700,000 - - 4
,700,000 2,173,759 4
6.3%
Other Taxes 6,525,000 - - 6
,525,000 1,210,787 1
8.6%
Licenses and Permits 7,685,160 - - 7
,685,160 4,289,757 5
5.8%
Intergovernmental 11,122,947 - - 1
1,122,947 5,555,477 4
9.9%
Charges for Services 33,897,117 2
0,000 4
4,450 33,961,567 7,666,776 2
2.6%
Charges for Services - OIAA 24,821,242 - - 2
4,821,242 10,342,184 41.7%
Use of Money & Property 1,615,000 - - 1
,615,000 226,687 1
4.0%
Fines and Forfeitures 996,000 - - 9
96,000 1,374,713 1
38.0%
Miscellaneous 6,905,457 1
,648,022 - 8,553,479 2,098,025 2
4.5%
Total Genera
l Fund Revenues 445,232,923$ 1,668,022$ 3,044,450$ 449,945,395$ 158,706,270$ 35.3% Transfers-In 2,000,000 4
33,378 - 2
,433,378 2,433,378 1
00.0%
TOTAL RESOURCES 447,232,923$ 2,101,400$ 3,044,450$ 452,378,773$ 161,139,648$ 35.6% 1 Other Taxes includes Franchise Tax ($4.8M) and Property Transfer Tax ($1.5M). 2 Intergovernmental includes Cost Allocation Plan Revenue, Disability, Worker's Compensation, & Unemployment Internal Service Allocation Revenue. 3 Charges for Services includes Special Districts Service Charges ($13.7M). 4 City Services including Police & Fire to Ontario International Airport Authority (OIAA). 5 Includes Sales Tax - Bradley Burns increase in point of sale revenue City of Ontario
General Fund Revenue by Category
Fiscal Year 2025-26
Mid-Year Budget Update
2 1
3 4
5 EXHIBIT A
3 830
FY 2025-26 FY2025-26 Actuals as of
Adopted Budget Current Budget 12/31/2025 % Expended
Personnel Costs 225,314,401$ -$ 103,489$ 112,394$ 225,530,284$ 113,544,646$ 50.3% CalPERS Pension Costs 43,965,203 - 16,759 958,233 44,940,195 12,244,552$ 27.2% Operating Expenditures 32,920,286 47,691 140,000 3,982,883 37,090,860 17,659,763 47.6% Contractual Services 26,405,460 - - 1,032,000 27,437,460 12,399,481 45.2% Internal Service Allocations 51,400,418 - 1,378 (4,697) 51,397,099 25,771,397 50.1% Reimbursement Agreements 10,961,000 - - - 10,961,000 2,012,286 18.4% Contribution Expense 27,500 - - - 27,500 85,280 310.1% Capital Expenditures - 63,947 - - 63,947 136,418 213.3% Total Operating Expenditures 390,994,268$ 111,638$ 261,626$ 6,080,813$ 397,448,345$ 183,853,823$ 46.3% Transfers-Out 56,238,655 - 3,433,378 - 59,672,033 59,238,655 99.3% Total General Fund Appropriations 447,232,923$ 111,638$ 3,695,004$ 6,080,813$ 457,120,378$ 243,092,478$ 53.2% 2 Personnel Costs includes $110K for Recommended Personnel Changes 4 Operating Expenditures includes $2.7M for Ontario Sports Empire Baseball Stadium Management Agreement with SMG and $1.2M for March Special Election Costs 5 Contractual Services includes $1.0M for Contractual Services at Homeless Access Center City of Ontario
General Fund Expenditures by Category
Fiscal Year 2025-26
Mid-Year Budget Update
1 Excludes obligations/PO's.
CIP/Grants/POs
Carryforward
First Quarter
Budget Update
Mid-Year
Budget Update
3 CalPERS Pensionl Costs includes additional $950K for increased FY 2025-26 CalPERS UAL Costs 4 5
2 1
3 EXHIBIT A
4 831
FY 2025-26 FY2025-26 Actuals as of
Adopted Budget Current Budget 12/31/2025 % Expended
Community Development 25,682,232$ -$ 42,974$ 107,556$ 25,832,762$ 12,519,121$ 48.5% Community Life & Culture 33,629,666 - 19,434 1,110,924 34,760,024 15,907,142 45.8% Economic Development 21,877,421 - - 2,692,073 24,569,494 9,272,165 37.7% Financial Services 11,913,846 - (31,408) 40,739 11,923,177 5,308,423 44.5% Human Resources/Risk Management 7,267,500 - (17,852) (3,143) 7,246,505 3,290,350 45.4% Management Services 11,085,493 - 2,914 1,279,253 12,367,660 5,836,474 47.2% Ontario Fire Department 102,878,946 63,947 - 260,583 103,203,476 48,486,202 47.0% Ontario Police Department 141,956,517 47,691 122,434 555,676 142,682,318 67,902,498 47.6% Public Works 34,702,647 - 123,130 37,152 34,862,929 15,331,448 44.0% Total General Fund Agencies 390,994,268$ 111,638$ 261,626$ 6,080,813$ 397,448,345$ 183,853,823$ 46.3% Transfers-Out 56,238,655 - 3,433,378 - 59,672,033 59,238,655 99.3% Total Appropriations & Transfers-Out 447,232,923$ 111,638$ 3,695,004$ 6,080,813$ 457,120,378$ 243,092,478$ 53.2% 4 Management Services includes $1.2M for March Special Election Costs 5 Fire Department includes additional $300K for increased FY 2025-26 CalPERS UAL Costs 6 Police Department includes additional $400K for increased FY 2025-26 CalPERS UAL Costs and $140K for Recommended Personnel Changes 2 Community Life & Culture includes approximately $1.0M for Contractual Services at Homeless Access Center 3 Economic Development includes $2.7M for Ontario Sports Empire Baseball Stadium Management Agreement with SMG City of Ontario
General Fund Expenditures by Agency
Fiscal Year 2025-26
Mid-Year Budget Update
1 Excludes obligations/PO's.
CIP/Grants/POs
Carryforward
First Quarter Budget
Update
Mid-Year
Budget Update
3 2
4 5
1 9
6 EXHIBIT A
5 832
Fiscal Year 2025-26 Current Budget:
Beginning Fund Balance1
87,610,976$
Fiscal Year 2025-26 Adopted Budget:
Resources & Transfers-In 447,232,923
Appropriations & Transfers-Out (447,232,923)
First Quarter Budget Recommendations
Resources & Transfers-In 2,101,400
Appropriations & Transfers-Out (3,695,004)
Fiscal Year 2024-25 Carryforward Obligations (111,638)
Recommended Allocation to Economic Uncertainty Reserve1 - Mid-Year Budget Recommendations
Resources & Transfers-In 3,044,450 -
Appropriations & Transfers-Out (6,080,813) -
Budget Surplus/(Deficit) (4,741,605)$
Estimated Ending Fund Balance 82,869,371$
Estimated General Fund Reserve 20%2
20.9%
2 For FY 2025-26, the Council approved reserve level is 20% with the goal of increasing the reserves up to 25% in future fiscal years. 1 Beginning Fund Balance for 07/01/2025 is based on ACFR.
City of Ontario
General Fund Budget Summary
Fiscal Year 2025-26
Mid-Year Budget Update
EXHIBIT A
6 833
FY 2025-26 FY2025-26 Actuals as of
Adopted Budget Current Budget 12/31/2025 % Expended
Personnel Costs 301,823,089$ 3,868,403$ 287,483$ 1,786,139$ 307,765,114$ 157,570,459$ 51.2% CalPERS Pension Costs 51,410,282 114,887 16,856 1,258,584 52,800,609 14,760,377 28.0% Operating Expenditures 251,592,617 8,724,713 2,601,577 10,312,989 273,231,896 146,083,760 53.5% Contractual Services 754,768,948 145,699,277 9,898,822 3,366,211 913,733,258 288,702,276 31.6% Internal Service Allocations 91,703,448 5,300 1,278 3,840 91,713,866 46,000,163 50.2% Reimbursement Agreements 12,220,900 5,606,776 298,813 363,526 18,490,015 5,597,603 30.3% Debt Service 57,042,055 21,876,813 1,039,951 8,250,246 88,209,065 18,257,510 20.7% Contribution Expense 19,200,503 - - 10,718,805 29,919,308 133,280 0.4% Capital Expenditures 29,651,530 23,847,507 2,913,892 319,543 56,732,472 20,658,657 36.4% Total Operating Expenditures 1,569,413,372$ 209,743,676$ 17,058,672$ 36,379,883$ 1,832,595,603$ 697,764,085$ 38.1% Transfers-Out 84,332,536 - 7,352,095 10,725,000 102,409,631 89,684,753 87.6% Total Citywide Appropriations 1,653,745,908$ 209,743,676$ 24,410,767$ 47,104,883$ 1,935,005,234$ 787,448,838$ 40.7% 1 Includes expenses and obligations/PO's.
5 Contractual Services includes $17.9M for Arena Entertainment District - East Plaza Project Construction, $10.7M for Flight Deck Ontario Sports Empire Baseball Stadium Restaurant Project Design and Construction, $10.0M for Municipal Services Center Relocation offsite improvements, bridge upgrades, and design plans phase, $5.6M for North Vineyard Sanitary Sewer Project Construction, $2.0M for Sultana Avenue Storm Drain Project Construction, $1.5M for Water Pressure Reducing Station Rehabilitation Construction, $1.1M for Granada Theater rehabilitation, testing, and advertisement, $1.0M for Contractual Servcies at Homeless Access Center, and ($50M) reduction to Ontario Sports Empire Baseball Stadium CIP due to estimated project savings8 Transfers includes $10.7M for Transfer from Water Capital Fund to Economic Development Activites Fund for Transfer of Fund Ownership of 13107-13131 South Campus and $75K Transfer from Capital Projects Fund to Public Art Fund for the Mural Program
2 Personnel Costs includes $1.0M for Additional Appropriations for City Administrative Costs Funded by Citywide Grants Awarded and $220K for Recommended Personnel Changes CIP/Grants/POs
Carryforward
First Quarter
Budget Update
Mid-Year
Budget Update
6 Debt Service includes $6.8M for property acquisition loan regarding 13107-13131 South Campus, $1.0M for Ontario Sports Empire - Southpark Property Acquisition (loan), and $370K for Downtown Revitalization Loan to Ontario Housing Authority for property acquisition regarding 13107-13131 South Campus 7 Contribution Expense includes $8.0M for Municipal Services Center Relocation Funding Contribution, $2.0M Contribution frim Fire DIF fund to Fleet Fund for purchase of 2 Fire Pumpers, and $700K Contribution to Municipal Services Center Relocation - EIR
3 CalPERS Pension Costs includes additional $1.2M for increased FY 2025-26 CalPERS UAL Costs City of Ontario
Citywide Expenditures by Category
Fiscal Year 2025-26
Mid-Year Budget Update
4 Operating Expenditures includes $4.2M for Additional Appropriations Funded by Citywide Grants Awarded, $2.7M for Ontario Sports Empire Baseball Stadium Management Agreement with SMG, $1.2M for March Special Election Costs, $1.0M for Grove & Holt Intersection Widening Project Right of Way Settlements, $620K for Outfitting of Fire Reserve Engines, and $600K for Ontario Ranch DIF Fees for Ontario Sports Empire Project 2 4
5 7
8 1
6 3
EXHIBIT A
7 834
FY 2025-26 FY2025-26 Actuals as of
Adopted Budget Current Budget 12/31/2025 % Expended
General Fund 447,232,923$ 111,638$ 3,695,004$ 6,080,813$ 457,120,378$ 243,092,478$ 53.2% Special Revenue Fund 87,396,147 52,534,478 6,221,271 16,029,123 162,181,019 40,020,789 24.7% Debt Service Fund 26,290,509 - - - 26,290,509 16,324,126 62.1% Capital Projects Fund 644,660,576 125,866,022 9,096,662 (3,027,165) 776,596,095 276,467,962 35.6% Enterprise Funds 290,964,819 20,029,624 1,093,626 25,072,825 337,160,894 129,631,290 38.4% Internal Service Funds 155,167,468 4,504,356 3,994,204 2,945,306 166,611,334 81,011,047 48.6% Total City Funds 1,651,712,442$ 203,046,118$ 24,100,767$ 47,100,902$ 1,925,960,229$ 786,547,692$ 40.8% Ontario Housing Authority 2,033,466 6,697,558 310,000 3,981 9,045,005 901,146 10.0% Total All Funds 1,653,745,908$ 209,743,676$ 24,410,767$ 47,104,883$ 1,935,005,234$ 787,448,838$ 40.7% 1 Includes expenses and encumbrances/PO's.
3 Special Revenue Funds includes $6.8M Property Acquisition Loan regarding 13107-13131 South Campus, $6.7M Additional Appropriationsfor City Administrative Costs Funded by Grants Awarded Citywide, $1.0M Additional Appropriations for Fire Safety Equipment, $820K for Ontario Police Department Media Room project, $750K for Grove & Holt Intersection Widening Project Right of Way Project 4 Capital Projects Funds includes $17.9M for Arena Entertainment District - East Plaza Project Construction, $10.6M for Flight Deck Ontario Sports Empire Baseball Stadium Restaurant Project Design and Construction, $10.0M for Municipal Services Center Relocation offsite improvements, bridge upgrades, and design plans phase, $2.0M for Sultana Avenue Storm Drain Project Construction, $2.0M for Contribution friom Fire DIF Fund to Fleet Fund for purchase of 2 Fire Pumpers, $1.1M for Granada Theater rehabilitation, testing, and advertisement, $1.0M for Ontario Sports Empire - Southpark Property Acquisition, and ($50M) reduction to Ontario Sports Empire Baseball Stadium Project due to estimated project savings 5 Enterprise Funds includes $10.7M for Transfer from Water Capital to Economic Development Activites Fund for Transfer of Fund Ownership of 13107-13131 South Campus, $6.0M for Municipal Services Center Relocation Funding Contribution, $5.6M for North Vineyard Sanitary Sewer Project Construction, $1.5M for Water Pressure Reducing Station Rehabilitation Construction, and $1.2M Additional Appropriations Funded by Grants Awarded
6 Internal Service Funds includes $2.0M for Municipal Services Center Relocation Funding Contribution, $550K for Drone Acquisition for Police CAD project 2 General Fund includes $2.7M for Ontario Sports Empire Baseball Stadium Management Agreement with SMG, $1.3M for March Special Election costs, $1.0M for Contractual Services at Homeless Access Center, $1.0M additional appropriations for increased FY 2025-26 CalPERS UAL Costs, $110K for Recommended Personnel Changes Mid-Year
Budget Update
City of Ontario
Citywide Expenditures by Fund Type
Fiscal Year 2025-26
Mid-Year Budget Update
CIP/Grants/POs
Carryforward
First Quarter
Budget Update
2 3
4 5
6 1