Agenda packet — Orange City Council, January 23, 2024 (part 1 of 4)

Tom Kisela
City Manager
Mike Vigliotta
City Attorney
Pamela Coleman
City Clerk

DAN SLATER
Mayor

ARIANNA BARRIOS
Mayor pro tem, District 1

JON DUMITRU
Councilmember, District 2

KATHY TAVOULARIS
Councilmember, District 3

DENIS BILODEAU
Councilmember, District 4

ANA GUTIERREZ
Councilmember, District 5

JOHN GYLLENHAMMER
Councilmember, District 6
AGENDA
City Council
January 23, 2024
5:00 PM Closed Session
6:00 PM Regular Session
City Council Chamber
300 E. Chapman Avenue
Orange, CA 92866
The City of Orange City Council welcomes you to this meeting and encourages your participation. Regular City Council meetings are held on the second and fourth Tuesday of each month at 6:00 p.m.

Agenda Information
The agenda contains a brief general description of each item to be considered. The City Council may take legislative action deemed appropriate with respect to the item and is not limited to the recommended action indicated in staff reports or the agenda. The agenda and supporting documentation is available after 4:00 p.m. on the Thursday prior to the Council meeting on the City's website at www .cityoforange.org, at the City Clerk's Office located at 300 E. Chapman Avenue, and at the Main Public Library located at 407 E. Chapman Avenue. Written materials relating to an item on the agenda that are provided to the City Council after agenda packet distribution and within 72 hours before Council is to consider the item will be made available for public inspection in the City Clerk’s Office during normal business hours; at the City Council meeting; and made available on the City's website.

Public Participation
Regular meetings are televised live on Spectrum Cable Channel 3 and AT&T U -verse Channel 99, and streamed live and on-demand on the City's website at www.cityoforange.org.

Pursuant to Government Code Section 54954.3, members of the public may address the City Council on any agenda item before or during Council ’s consideration of the item, and on any other matters within the City Council’s jurisdiction by using any of the following methods:
1) In-Person
To speak on an item on the agenda, complete a speaker card indicating your name, address, and identify the agenda item number or subject matter you wish to address. The card should be given to the City Clerk prior to the start of the meeting. General comments are received during the “Public Comments” section at the beginning of the Regular Session. No action may be taken on off -agenda items unless authorized by law .

Public Comments are limited to three (3) minutes per speaker unless a different time limit is announced. It is requested that you state your name for the record, then proceed to address the City Council. All speakers shall observe civility, decorum, and good behavior.
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1 City Council Agenda January 23, 2024
2) Written Public Comments via eComment
Members of the public can submit their written comments electronically for City Council consideration by using the eComment feature on the Agenda page of the City's website at www .cityoforange.org. To ensure distribution to the City Council prior to consideration of the agenda, we encourage the public to submit written comments by 3:00 p.m. the day of the meeting. All written comments will be provided to the Council for consideration and posted on the City’s website after the meeting. 3) Public Comments via recorded voicemail message
Finally, the public can record their comments by calling (714) 744-2234 no later than 5:00 p.m. the day of the meeting. Recorded messages will not be played at the meeting, but will be provided to the Council.

In accordance with Ordinance No. 10-01, any person making personal, impertinent, slanderous or profane remarks or who becomes boisterous while addressing the Council shall be called to order by the Mayor. If such conduct continues, the Mayor may order the person barred from addressing the City Council further during that meeting, unless permission to continue is granted by a majority vote of the Council.

Please contact the City Clerk’s Office at (714) 744-5500 with any questions.

ADA Requirements: In compliance with the Americans with Disabilities Act, if you need accommodations to participate in this meeting, please contact the City Clerk's office at (714) 744-5500. Notification at least 48 hours in advance of meeting will enable the City to make arrangements to assure accessibility to this meeting.

REMINDER: Please silence all electronic devices while City Council is in session.

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2 City Council Agenda January 23, 2024
5:00 PM CLOSED SESSION

1. CALL TO ORDER

1.1 ROLL CALL

2. PUBLIC COMMENTS ON CLOSED SESSION ITEMS
At this time, members of the public may address the Council on Closed Session items only. Public Comments are limited to three (3) minutes per speaker.

3. RECESS TO CLOSED SESSION
a. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
Pursuant to Government Code Section 54956.9(a) & (d)(1) - One case Name of Case: Mary’s Kitchen, et al. v. City of Orange
Orange County Superior Court Case No. 30-2021-01224070
b. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION – ANTICIPATED

LITIGATION
Pursuant to Government Code Section 54956.9(a), (d)(1) & (d)(4) - One case Name of Case: Gloria Johnson, et. al. v. City of Grants Pass United States Court of Appeals for the Ninth Circuit Case Nos. 20-35752; 20-35881 United States District Court for the District of Oregon Case No. 1:18-cv-01823-CL (The reason for holding a closed session is for the purpose of conferring with and /or receiving advice from the City ’s legal counsel and to receive direction from the City Council regarding the possible filing and/or participation in an amicus brief in this case.)

4. CLOSED SESSION REPORT

5. ADJOURNMENT
The City Council will adjourn to the 6:00 p.m. Regular Session in the Council Chamber.

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3 City Council Agenda January 23, 2024
6:00 PM REGULAR SESSION

1. OPENING/CALL TO ORDER

1.1 INVOCATION
Pastor William Johnson, First United Methodist Church

1.2 PRESENTATION OF COLORS AND PLEDGE OF ALLEGIANCE
Boy Scout Troop 1475 and Cub Scout Pack 1475

1.3 ROLL CALL

1.4 PRESENTATIONS/ANNOUNCEMENTS
Memorial Adjournment in honor of Thomas Broz
Orange Public Library Foundation Presentation to the Orange Public Library Proclamation honoring the Woman's Club of Orange for their Service to the Community

1.5 REPORT ON CLOSED SESSION ACTIONS

2. PUBLIC COMMENTS
At this time, members of the public may address the Council on matters not listed on the agenda within the subject matter jurisdiction of the City Council, provided that NO action may be taken on off -agenda items unless authorized by law. Public Comments are limited to three (3) minutes per speaker.

3. CONSENT CALENDAR
All items on the Consent Calendar are considered routine and are enacted by one motion approving the recommended action listed on the Agenda. Any member of the City Council, staff, or the public may request an item be removed from the Consent Calendar for discussion or separate action. Unless otherwise specified in the request to remove an item from the Consent Calendar, all items removed shall be considered immediately following action on the remaining items on the Consent Calendar.

3.1. Waive reading in full of all ordinances on the Agenda.

Approve.

Recommended Action:

Staff ReportAttachments:

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4 City Council Agenda January 23, 2024

3.2. Agreement with Verde Design, Inc. for architectural and engineering design services for El Modena Park ball field netting as part of the El Modena Area Renovation project and finding of CEQA exemption.

1. Approve the agreement with Verde Design, Inc. in an amount not to exceed $128,216 for design of a ball field netting project as part of the El Modena Area Renovation Project; and authorize the Mayor and City Clerk to execute on behalf of the City.

2. Find that the proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “Existing Facilities” Class 1.

Recommended Action:

Staff Report
Agreement with Verde Design, Inc.

Attachments:

3.3. Agreement with Cullen & Associates, Inc ., for an Interim Assistant Finance Director position.

Approve the agreement with Cullen & Associates, Inc. in the amount of $ 80,000 for assistance in the daily oversight and management of the activities in the Finance Department; and authorize the Mayor and City Clerk to execute on behalf of the City.

Recommended Action:

Staff Report
Professional Services Agreement
Attachments:

3.4. Software Services Agreement with Fifth Asset, Inc. d/b/a DebtBook for Accounting for Debt Service, Leases, and Subscription Based Information Technology Arrangements.

Approve the agreement with Fifth Asset, Inc. d/b/a DebtBook in the amount of $ 43,500 for a software subscription to track the City ’s debt service obligations, leases, and Subscription Based Information Technology Arrangements; and authorize the Mayor and City Clerk to execute on behalf of the City.

Recommended Action:

Staff Report
Software Services Agreement
Attachments:

3.5. Lease Agreement between the City of Orange and Orange Children and Parents Together.

Approve the ten -year Lease Agreement, with two five -year extensions, between the City and Orange Children and Parents Together; and authorize the Mayor and City Clerk to execute on behalf of the City.

Recommended Action:

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5 City Council Agenda January 23, 2024
Staff Report
Lease Agreement
Attachments:

3.6. Third Amendment to Agreement with Tetra Tech, Inc. for providing geotechnical and construction support services for Well 28 Equipping and Public Pocket Park Construction Project.

Approve the Third Amendment for $ 83,500 with Tetra Tech Inc. bringing the total contract to a not to exceed amount of $ 938,200; and authorize the Mayor and City Clerk to execute on behalf of the City.

Recommended Action:

Staff Report
Third Amendment to Agreement with Tetra Tech, Inc.

Attachments:

3.7. Appropriation of $ 36,260 in designated donation funding received from the Orange Public Library Foundation.

1. Accept into the City ’s budget a $36,260 donation from Orange Public Library Foundation, into revenue account number 100.2001.48390.19322, General Fund - Orange Public Library Foundation.

2. Authorize the appropriation of $36,260 into the following expenditure account numbers:
$20,000 100.2004.55131.19322 Furniture & Machinery
$16,260 100.2001.53001.20307 Materials & Supplies
Recommended Action:

Staff ReportAttachments:

3.8. Award of Sourcewell Contract to Horizons Construction Company International, Inc. for facility repairs, maintenance, and safety improvements; and finding of CEQA exemption.

1. Approve contract with Horizons Construction Company International, Inc. for $146,563, representing an original amount of $127,446 plus a 15% contingency of $19,117 for facility repairs, maintenance, and safety improvements; and authorize the Mayor and City Clerk to execute on behalf of the City.

2. Find that the proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “existing facilities” Class 1.

Recommended Action:

Staff Report
Contract with Horizons Construction Company International, Inc.

Attachments:

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6 City Council Agenda January 23, 2024

3.9. Award of Contract to Gentry General Engineering, Inc. for Community Development Block Grant Fiscal Year 2023-2024 Americans With Disabilities Act Wheelchair Access Ramp Replacement Project; and authorize Amendment to the 2023-2024 Annual Action Plan to increase funding for the project; Bid No . 23-24.18.

1. Authorize the Amendment to the Memorandum of Understanding to increase the 2023-2024 Americans With Disabilities Act Wheelchair Access Ramp Project by $10,000, for a total not -to-exceed amount of $100,000; and authorize the City Manager or his designee to execute the amendment on behalf of the City.

2. Authorize the Amendment to the 2023-2024 Annual Action Plan to increase the allocation to the 2023-2024 Americans With Disabilities Act Wheelchair Access Ramp Project by $10,000 to a total allocation of $100,000 and submit the Amendment to the Department of Housing and Urban Development (HUD).

3. Authorize the transfer of $10,000 from expenditure account 310.9645.56020.20503, CIP-Building and Improvements to expenditure account 310.9645.56330.11328, ADA Improvements - Curbs.

4. Approve contract to Gentry General Engineering, Inc. in the total amount of $86,570, representing an original amount of $78,700, plus a 10% contingency of $7,870, for Community Development Block Grant Fiscal Year 2023-2024 Americans With Disabilities Act Wheelchair Access Ramp Replacement Project; and authorize the Mayor and City Clerk to execute on behalf of the City.

Recommended Action:

Staff Report
Bid Abstract
Contract with Gentry General Engineering, Inc.

Amendment to 2023-2024 Annual Action Plan
Attachments:

3.10. City Traffic Commission Activity Report for 2023.

Receive and file.

Recommended Action:

Staff Report
Activity Recap 2023
Attachments:

3.11. Approval of temporary street closures for approved special events. Resolution No.11520.

1. Adopt Resolution No .11520. A Resolution of the City Council of the City of Orange approving the temporary closure of sections of public streets for approved special events.

2. Approve closure of municipal parking lots and temporary suspension of neighborhood permit parking restrictions for certain events and dates occurring in Fiscal Years 2023-2024 and 2024-2025.

Recommended Action:

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Staff Report
Attachment 1 Resolution No. 11520
Attachment 2 Map of Municipal Parking Lots
Attachment 3 Map of Permit Parking Area A
Attachment 4 Map of Permit Parking Area D & G
Attachment 5 Site Sketch of South Orange Street at Assistance League Building
Attachment 6 Letters of Request
Attachments:

3.12. Memorandum of Understanding between the City of Orange and the Orange City Firefighters, Inc. Local 2384 of the International Association of Fire Fighters, AFL-CIO. Resolution No. 11521.

Adopt Resolution No. 11521. A Resolution of the City Council of the City of Orange repealing Resolution No. 11274 and all amendments thereto and approving the Memorandum of Understanding between the City of Orange and the Orange City Firefighters, Inc. Local 2384 of the International Association of Fire Fighters AFL -CIO concerning wages, hours, and other terms and conditions of employment effective July 1, 2023, through June 30, 2026.

Recommended Action:

Staff Report
Resolution No. 11521
Attachments:

END OF CONSENT CALENDAR
* * * * * * * *

4. REPORTS FROM MAYOR SLATER

5. REPORTS FROM COUNCILMEMBERS
An opportunity for Councilmembers to make a brief announcement, report, or request .

No action(s) will be taken pursuant to Government Code Section 54954.2(a)(3).

6. AB 1234 REPORTS
This is the time for all AB 1234 reports required pursuant to Government Code Section 53232.3(d) on meetings and conferences attended at the City's expense.

7. ADMINISTRATIVE REPORTS

7.1. Professional Services Agreement with CityThinkers, Inc. for urban design services to develop a design concept for the West Katella Avenue area.

1. Approve the transfer of $55,000 from 952.9810.56020.20247, Building and Improvements -SAORA Capital, to 952.9810.51670.20541, Prof & Consulting - West Katella District.

Recommended Action:

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8 City Council Agenda January 23, 2024

2. Approve the agreement with CityThinkers, Inc. in the amount of $55,000 for urban design services; and authorize the Mayor and City Clerk to execute on behalf of the City.

Staff Report
Professional Services Agreement with CityThinkers, Inc.

Attachments:

7.2. Affordable Housing Agreement between the City of Orange and Orange 702, L.P.

1. Approve the Affordable Housing Agreement between the City of Orange and Orange 702, L.P. in the amount of $2,200,000.

2. Authorize the City Manager and City Clerk to execute the Agreement, with any minor, non -substantive changes approved by the City Attorney, as well as any amendments thereto and all documentation in furtherance of the Agreement, including, but not limited to, any attachments to the Agreement and any necessary subordination agreements.

3. Authorize the appropriation of $2,200,000 from the Low and Moderate Income Housing Asset Fund (921) unreserved balance to expenditure account number 921.9810.56571.20540 - Rehab/Dev Loans - Orion Project. Estimated fund balance after appropriation is $955,000.

Recommended Action:

Staff Report
Affordable Housing Agreement with Orange 702, L.P
Attachments:

7.3. Consideration of City Council resolutions memorializing the Orange City Council’s position on forthcoming ballot measures in March and November 2024.

1. Receive and file a presentation on Proposition 1, Assembly Constitutional Amendment 1, and Assembly Constitutional Amendment 13 by Townsend Public Affairs.

2. Consider the adoption of Resolution No. 11523. A Resolution of the City Council of the City of Orange, California, opposing Assembly Constitutional Amendment 1, which will appear on the November 5, 2024, Statewide General Election Ballot.

3. Consider the adoption of Resolution No. 11524. A Resolution of the City Council of the City of Orange, California, opposing Assembly Constitutional Amendment 13 which will appear on the November 5, 2024, Statewide General Election Ballot.

4. Consider the adoption of Resolution No. 11525. A Resolution of the City Council of the City of Orange, California, opposing Proposition 1, Behavioral Health Services Program and Bond Measure, which has been placed on the March 5, 2024, Statewide Presidential Primary Election Ballot.

Recommended Action:

Staff Report
Resolution No. 11523
Resolution No. 11524
Resolution No. 11525
Attachments:

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9 City Council Agenda January 23, 2024

8. REPORTS FROM CITY MANAGER

9. PUBLIC HEARINGS

9.1. Public Hearing to consider an amendment to the 2020-2024 Consolidated Plan to add a Tenant Based Rental Assistance Program and updates to the Citizen Participation Plan.

1. Conduct and close Public Hearing.

2. Approve the draft amendment to the 2020-2024 Consolidated Plan.

3. Approve the updates to the Citizen Participation Plan.

4. Authorize staff to incorporate comments received for the amendment to the 2020- 2024 Consolidated Plan at the Public Hearing before submitting to the Department of Housing and Urban Development.

Recommended Action:

Staff Report
Draft Amendment to the 2020-2024 Consolidated Plan
Draft CitizenParticipation Plan
Attachments:

10. ADJOURNMENT
The City Council will Adjourn in Memory of Thomas Broz.

The next Regular City Council meeting will be held on Tuesday, February 13, 2024, at 6:00 p.m., in the Council Chamber, with Closed Session beginning at 5:00 p.m., if necessary.

I, Pamela Coleman, CMC, City Clerk for the City of Orange, do hereby declare, under penalty of perjury, that a full and correct copy of this agenda was posted pursuant to Government Code Section 54950 et. seq., at the following locations: Orange Civic Center kiosk and Orange City Clerk's Office at 300 E. Chapman Avenue, Orange Main Public Library at 407 E. Chapman Avenue, Police facility at 1107 N. Batavia Street, and uploaded to the City's website www.cityoforange.org.

Date posted: January 18, 2024

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10 Agenda Item
City Council
Item #: 3.1. 1/23/2024 File #: 24-0041
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Pamela Coleman, City Clerk

1. SUBJECT
Waive reading in full of all ordinances on the Agenda.

2. SUMMARY
This item asks the City Council to waive the reading in full of all ordinances on the agenda (if any) and approve their reading by title only.

State law requires that all ordinances be read in full either at the time of the introduction or at the time of passage, unless a motion waiving further reading is adopted by a majority of the City Council (Gov.

Code § 36934).

3. RECOMMENDED ACTION
Approve.

4. ATTACHMENTS
· None
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11 Agenda Item
City Council
Item #: 3.1. 1/23/2024 File #: 24-0041
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Pamela Coleman, City Clerk

1. SUBJECT
Waive reading in full of all ordinances on the Agenda.

2. SUMMARY
This item asks the City Council to waive the reading in full of all ordinances on the agenda (if any) and approve their reading by title only.

Code § 36934).

3. RECOMMENDED ACTION
Approve.

4. ATTACHMENTS
· None
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12 Agenda Item
City Council
Item #: 3.2. 1/23/2024 File #: 24-0030
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Leslie Hardy, Community Services Director

1. SUBJECT
Agreement with Verde Design, Inc. for architectural and engineering design services for El Modena Park ball field netting as part of the El Modena Area Renovation project and finding of CEQA exemption.

2. SUMMARY
Agreement with Verde Design, Inc. for design work, consisting of conceptual/preliminary plans (Task 1) and construction and engineering documents (Task 2) for a ball field netting project as part of the El Modena Area Renovation Project (30048). The project will include a foul ball trajectory study and subsequent analysis as necessary to calculate the netting height and span of the protective netting to provide appropriate protection of adjacent homes, park users, street traffic, and parked cars. The project will also include demolition and removal of the existing backstop and provide a new safety netting system along the first and third baselines of the baseball field.

3. RECOMMENDED ACTION

2. Find that the proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “Existing Facilities” Class 1.

4. FISCAL IMPACT
The total expenditure for this agreement is $128,216 and will be funded in El Modena Area Renovation (30048) through El Modena Park Facility (Cell Tower Fee) (512) account 512.7021.56020.30048 - CIP Building - El Mo Upper Restroom & Area.

5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.

Goal 3: Enhance and promote quality of life in the community a: Renovate, maintain, develop, and/or expand public use places and spaces.

6. DISCUSSION AND BACKGROUND
El Modena Park was constructed in the early 1970s and several amenities have been in need of City of Orange Printed on 1/18/2024Page 1 of 2
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13 Item #: 3.2. 1/23/2024 File #: 24-0030
El Modena Park was constructed in the early 1970s and several amenities have been in need of repair in order to maintain a safe and functional park environment for patrons. The City Council approved the phased El Modena Area Renovation project (30048) several years ago, which included park irrigation improvements, installation of tot lot shade sails, and rubberized surfacing at the tot lot (all completed in Fiscal Year 2022-23).

The last phase of the project, the ball field netting project, includes installing foul ball netting around the existing baseball field to address safety concerns related to rogue foul balls. With the current backstop fencing being insufficient in stopping foul balls, this project will include a foul ball trajectory study and subsequent analysis as necessary to calculate netting height and span of the protective netting to provide adequate protection of adjacent homes, park users, street traffic, and parked cars.

The project will also include demolition and removal of the existing backstop and provide a new safety netting system along the first and third baselines of the baseball field.

A Request for Proposal (RFP 23-24.10) was issued in September 2023 for the design and preparation of construction documents, plans, specifications, and cost estimates for the project. The City received one responsive and responsible proposal from Verde Design, Inc. (Verde). Staff reviewed the proposal and based on the firm’sexperience, overall qualifications, record of success, and overall responsiveness to the RFP, staff deemed Verde qualified. Verde is also the design firm currently contracted by the City to provide architectural and engineering design services for the Hart Park Diamond 1 Field Improvements project.

Verde’sproposed cost for the project is $116,560 which includes a conceptual plan, geotechnical investigation, foul ball trajectory study, construction drawings, and estimate of probable construction costs. Including a 10% contingency of $11,656 for unanticipated expenses, the total not to exceed amount for the contract is $128,216. The cost for the design is included in Fiscal Year 2023-24 CIP through the El Modena Area Rennovation Project (30048) in the El Modena Park Facility (Cell Tower Fee) fund (512). It is anticipated that the design process will take approximately five to six months to complete. Once construction documents are completed, a Request For Bid will be issued for construction.

7. ENVIRONMENTAL REVIEW
Categorical Exemption: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “Existing Facilities” Class 1 because the project involves the repair and maintenance of existing facilities with no expansion of existing use. The CEQA Notice of Exemption will be filed with the County Recorder’s Office upon Council’s approval of the plans and specifications.

8. ATTACHMENTS
· Agreement with Verde Design, Inc.

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14 Agenda Item
City Council
Item #: 3.2. 1/23/2024 File #: 24-0030
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Leslie Hardy, Community Services Director

3. RECOMMENDED ACTION

1. Approve agreement with Verde Design, Inc. in an amount not to exceed $128,216 for design of a ball field netting project as part of the El Modena Area Renovation Project; and authorize the Mayor and City Clerk to execute on behalf of the City.

2. Find that the proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “Existing Facilities” Class 1.

5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.

Goal 3: Enhance and promote quality of life in the community a: Renovate, maintain, develop, and/or expand public use places and spaces.

6. DISCUSSION AND BACKGROUND
El Modena Park was constructed in the early 1970s and several amenities have been in need of City of Orange Printed on 1/17/2024Page 1 of 2
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15 Item #: 3.2. 1/23/2024 File #: 24-0030
El Modena Park was constructed in the early 1970s and several amenities have been in need of repair in order to maintain a safe and functional park environment for patrons. The City Council approved the phased El Modena Area Renovation project (30048) several years ago, which included park irrigation improvements, installation of tot lot shade sails, and rubberized surfacing at the tot lot (all completed in Fiscal Year 2022-23).

The project will also include demolition and removal of the existing backstop and provide a new safety netting system along the first and third baselines of the baseball field.

8. ATTACHMENTS
· Agreement with Verde Design, Inc.

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16 PROFESSIONAL SERVICES AGREEMENT
[El Modena Park Ball Field Netting Design Services (Bid No. 23-24.10)]

THIS PROFESSIONAL SERVICES AGREEMENT (the “Agreement”) is made at Orange, California, on thi s _____ day of ____________, 20 23 (the “Effective Date”) by and between the CITY OF ORANGE, a municipal corporation (“City”), and VERDE DESIGN, INC., a California corporation (“Contractor”), who agree as follows:

1. Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to the reasonable satisfaction of City the services set forth in Exhibit “A,” which is attached hereto and incorporated herein by reference. As a material inducement to City to enter into this Agreement, Contractor represents and warrants that it has thoroughly investigated and considered the scope of services and fully understands the difficulties and restrictions in performing the work. The services which are th e subject of this Agreement are not in the usual course of City’s business and City relies on Contractor’s representation that it is independently engaged in the busi ness of providing such services and is experienced in performing the work.

Contractor shall perform all services in a manner reasonably satisfactory to City and in a manner in conformance with the standards of quality normally observed by an entity provided such services to a municipal agency. All services provided shall conform to all federal, state and local laws, rules and regulations and to the best professional standards and practices. The terms and conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A" to the contrary.

Nathan Bluhm, Senior Project/Landscape Coordinator (“City’s Project Manager”), shall be the person to whom Contractor will report for the performance of services hereunder. It is understood that Contractor’s performance hereunder shall be under the supervision of City’s Project Manager (or his/her designee), that Contractor shall coordinate its services hereunder with City’s Project Manager to the extent required by City’s Project Manager, and that all performances required hereunder by Contractor shall be performed to the satisfaction of City’s Project Manager and the City Manager.

2. Compensation and Fees.

a. Contractor's total compensation for all services performed under this Agreement, shall not exceed ONE HUNDRED SIXTEEN THOUSAND FIVE HUNDRED SIXTY DOLLARS and 00/100 ($116,560.00) without the prior written authorization of City.

b. The above compensation shall include all costs, including, but not limited to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental, subsistence and all related expenses.

c. In addition to the scheduled services to be performed by the Contractor, the parties recognize that additional, unforeseen work and services may be required by City’s Project Manager. In anticipation of such contingencies, the sum of ELEVEN THOUSAND SIX HUNDRED FIFTY-SIX DOLLARS and 00/100 ($ 11,656.00) has been added to the total 17 2
compensation of this Agreement. City’s Project Manager may approve the additional work and the actual costs incurred by the Contractor in performance of additional work or services in accordance with such amount as City’s Project Manager and the Contractor may agree upon in advance. Said additional work or services and the amount of compensation therefor, up to the amount of the authorized contingency, shall be memorialized in the form of a n Amendment to Agreement approved by the City Manager on a form ac ceptable to the City Attorney. The Contractor agrees to perform only that work or those services that are specifically requested by the City’s Project Manager. Any and all additional work and services performed under this Agreement shall be completed in such sequence as to assure their completion as expeditiously as is consistent with professional skill and care in accordance with a cost estimate or proposal submitted to and approved by City’s Project Manager prior to the commencement of such services.

d. The total amount of compensation under this Agreement, including contingencies, shall not exceed ONE HUNDRED TWENTY-EIGHT THOUSAND TWO HUNDRED SIXTEEN DOLLARS and 00/100 ($128,216.00).

3. Payment.

a. As scheduled services are completed, Contractor shall submit to City an invoice for the services completed, authorized expenses and authorized extra work actually performed or incurred.

b. All such invoices shall state the basis for the amount invoiced, including services completed, the number of hours spent and any extra work performed.

c. City will pay Contractor the amount invoiced within thirty-five (35) days after the approval of the invoice.

d. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice.

4. Change Orders. No payment for extra services caused by a change in the scope or complexity of work, or for any other reason, shall be made unless and until such extra services and a price therefor have been previously authorized in writing and approved by City as an amendment to this Agreement. City’s Project Manager is authorized to approve a reduction in the services to be performed and compensation therefor. All amendments shall set forth the changes of work, extension of time, and/or adjustment of the compensation to be paid by City to Contractor and shall be signed by the City’s Project Manager, City Manager or City Council, as applicable.

5. Licenses. Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state or federal law to perform the work contemplated by this Agreement and that Contractor and its subcontractors shall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Agreement.

18 3

6. Independent Contractor . At all times during the term of this Agreement, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar as the result of Contractor's services rendered pursuant to this Agreement. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be required for furnishing services pursuant to this Agreement. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.

Contractor acknowledges that it and any subcontractors, agents or employees employed by Contractor shall not, under any circumstances, be considered employees of City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long-term disability or workers' compensation insurance benefits.

7. Contractor Not Agent. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever.

8. Designated Persons. Only those qualified persons authorized by City’s Project Manager, or as designated in Exhibit “A,” shall perform work provided for under this Agreement.

It is understood by the parties that clerical and other nonprofessional work may be performed by persons other than those designated.

9. Assignment or Subcontracting. No assignment or subcontracting by Contractor of any part of this Agreement or of funds to be received under this Agreement shall be of any force or effect unless the assignment has the prior written approval of City. City may terminate this Agreement rather than accept any proposed assignment or subcontracting. Such assignment or subcontracting may be approved by the City Manager or his/her designee.

10. Time of Completion . Except as otherwise specified in Exhibit “A,” Contractor shall commence the work provided for in this Agreement within ten (10) days of the Effective Date of this Agreement and diligently prosecute completion of the work in accordance with the time period set forth in Exhibit “A” hereto or as otherwise agreed to by and between the representatives of the parties.

11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall do all things necessary and incidental to the prosecution of Contractor's work.

12. Reserved.

13. Delays and Extensions of Time. Contractor's sole remedy for delays outside its control, other than those delays caused by City, shall be an extension of time. No matter what the cause of the delay, Contractor must document any delay and request an extension of time in writing 19 4
at the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the length of the delay outside Contractor’s control. If Contractor believes that delays caused by City will cause it to incur additional costs, it must specify, in writing, why the delay has caused additional costs to be incurred and the exact amount of such cost at the time the delay occurs. No additional costs can be paid that exceed the not to exceed a mount stated in Section 2.a, above, absent a written amendment to this Agreement.

14. Products of Contractor. The documents, studies, evaluations, asses sments, reports, plans, citations, materials, manuals, technical data, logs, files, designs and other products produced or provided by Contractor for this Agreement shall become the property of City upon receipt. Contractor shall deliver all such products to City prior to payment for same. City may use, reuse or otherwise utilize such products without restriction.

15. Equal Employment Opportunity . During the performance of this Agreement, Contractor agrees as follows:

Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.

c. Contractor shall cause the foregoing paragraphs (a) and (b) to be inserted in all subcontracts for any work covered by this Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.

16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the making, or in any way attempt to use its position as a consultant to influence any decision of City in which Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code.

17. Indemnity.

a. To the fullest extent permitted by law, Contractor agrees to indemnify, defend and hold City, its City Council and each member thereof, and the officers, officials, agents 20 5
and employees of City (collectively the “Indemnitees”) entirely harmless from all liability arising out of:

(1) Any and all claims under workers’ compensation acts and other employee benefit acts with respect to Contractor’s employees or Contractor’s subcontractor’s employees arising out of Contractor’s work under this Agreement, including any and all claims under any law pertaining to Contractor or its employees’ status as an independent contractor and any and all claims under Labor Code section 1720 related to the payment of prevailing wages for public works projects; and

(2) Any claim, loss, injury to or death of persons or damage to property caused by any act, neglect, default, or omission other than a professional act or omission of Contractor, or person, firm or corporation employed by Contractor, either directly or by independent contract, including all damages due to loss or theft sustained by any person, firm or corporation including the Indemnitees, or any of them, arising out of, or in any way connected with the work or services which are the subject of this Agreeme nt, including injury or damage either on or off City’s property; but not for any loss, injury, death or damage caused by the active negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall indemnify any and all claims, actions, suits or other proceedings that may be brought or instituted against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay or satisfy any judgmen t that may be rendered against the Indemnitees, or any of them, in any action, suit or other proceedings as a result of coverage under this subparagraph.

b. To the fullest extent permitted by law, and as limited by California Civil Code 2782.8, Contractor agrees to indemnify and hold Indemnitees harmless from all liability arising out of any claim, loss, injury to or death of persons or damage to property to the extent caused by its negligent professional act or omission in the performance of professional services pursuant to this Agreement.

c. Except for the Indemnitees, the indemnifications provided in this Agreement shall not be construed to extend any third-party indemnification rights of any kind to any person or entity which is not a signatory to this Agreement.

d. The indemniti es set forth in this section shall survive any closing, rescission, or termination of this Agreement, and shall continue to be binding and in full force and effect in perpetuity with respect to Contractor and its successors.

18. Insurance.

a. Contractor shall carry workers’ compensation insurance as required by law for the protection of its employees during the progress of the work. Contractor understands that it is an independent contractor and not entitled to any worker s’ compensation benefits under any City program.

b. Contractor shall maintain during the life of this Agreement the following minimum amount of comprehensive general liability insurance or commercial general liability 21 6
insurance: the greater of (1) One Million Dollars ( $1,000,000) per occurrence ; or (2) all the insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover bodily injury, death and property damage and be written on an occurrence basis.

c. Contractor shall maintain during the life of this Agreement, the following minimum amount of automotive liability insurance: the greater of (1) a combined single limit of One Million Dollars ($ 1,000,000); or (2) all the insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover bodily injury, death and property damage for all owned, non-owned and hired vehicles and be written on an occurrence basis.

d. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of Contractor under this Agreement.

e. Each policy of general liability and automotive liability shall provide that City, its officers, officials, agents, and employees are declared to be additional insureds under the terms of the policy, but only with respect to the work performed by Contractor under this Agreement. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional insured as a contracting party. The minimum coverage required by Subsection 18.b and c, above, shall apply to City as an additional insured. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth below shall be maintained for the duration of the Agreement.

f. Contractor shall maintain during the life of this Agreement professional liability insurance covering errors and omissions arising out of the performance of this Agreement with a minimum limit of One Million Dollars ($1,000,000) per claim. Contractor agrees to keep such policy in force and effect for at least five (5) years from the date of completion of this Agreement.

g. The insurance policies maintained by Contractor shall be primary insurance and no insurance held or owned by City shall be called upon to cover any loss under the policy.

Contractor will determine its own needs in procurement of insurance to cover liabilities other than as stated above.

h. Before Contractor performs any work or prepares or delivers any materials, Contractor shall furnish certificates of insurance and endorsements, as required by City, evidencing the aforementioned minimum insurance coverages on forms acceptable to City, which shall provide that the insurance in force will not be canceled or allowed to lapse without at least ten (10) days’ prior written notice to City.

i. Except for professional liability insurance coverage that may be required by this Agreement, all insurance maintained by Contractor shall be issued by companies admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide. In the case of 22 7
professional liability insurance coverage, such coverage shall be issued by companies either licensed or admitted to conduct business in California so long as such insurer pos sesses the aforementioned Best rating.

j Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Agreement unless otherwise directed by City.

In such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs and any and all damages resulting therefrom, by way of set -off from any sums owed Contractor.

k. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.

Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such insurance.

l. Contractor shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor to City for review and approval. All coverages for subcontractors shall be subject to all of the requirements stated herein.

19. Termination. City may for any reason terminate this Agreement by giving Contractor not less than five (5) days’ written notice of intent to terminate. Upon receipt of such notice, Contractor shall immediately cease work, unless the notice from City provides otherwise.

Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with this Agreement, unless termination by City shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits.

20. Maintenance and Inspection of Records. In accordance with generally accepted accounting principles, Contractor and its subcontractors shall maintain reasonably full and complete books, documents, papers, accounting records, and other information (collectively, the “records”) pertaining to the costs of and completion of services performed under this Agreement.

City and its authorized representatives shall have access to and the right to audit and reproduce any of Contractor's records regarding the services provided under this Agreement. Contractor shall maintain all such records for a period of at least three (3) years after termination or completion of this Agreement. Contractor agrees to make available all such records for inspection or audit at its offices during normal business hours and upon three (3) days’ notice from City, and copies thereof shall be furnished if requested.

21. Compliance with all Laws/Immigration Laws.

a. Contractor shall be knowledgeable of and comply with all local, state and federal laws which may apply to the performance of this Agreement.

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b. If the work provided for in this Agreement constitutes a “public works,” as that term is defined in Section 1720 of the California Labor Code, for which prevailing wages must be paid, to the extent Contractor’s employees will perform any work that falls within any of the classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it, shall pay not less than the specified prevailing ra tes of wages to all such workers . The general prevailing wage determinations for c rafts can be located on the web site of the Department of Industrial Relations ( www.dir.ca.gov/DLSR). Additionally, to perform work under this Agreement, Contractor must meet all State registration requirements and criteria, including project compliance monitoring.

c. Contractor represents and warrants that Contractor:

(1) Has complied and shall at all times during the term of this Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders, including, without limitation, the Immigration Reform and Control Act of 1986 (IRCA); and

(2) Has not and will not knowingly employ any individual to perform services under this Agreement who is ineligible to work in the United States or under the terms of this Agreement; and

(3) Has properly maintained, and shall at all times during the term of this Agreement properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I -9 for each of Contractor’s employees; and

(4) Has responded, and shall at all times during the term of this Agreement respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I -9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration.

d. Contractor shall require all subcontractors or subconsultants to make the same representations and warranties as set forth in Subsection 21.c.

e. Contractor shall, upon request of City, provide a list of all employees working under this Agreement and shall provide, to the reasonable satisfaction of City, verification that all such employees are eligible to work in the United States. All costs associated with such verification shall be borne by Contractor. Once such request has been made, Contractor may not change employees working under this Agreement without written notice to City, accompanied by the verification required herein for such employees.

f. Contractor shall require all subcontractors or sub-consultants to make the same verification as set forth in Subsection 21.e.

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g. If Contractor or subcontractor knowingly employs an employee providing work under this Agreement who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee, that shall constitute a material breach of this Agreement and may be cause for immediate termination of this Agreement by City.

h. Contractor agrees to indemnify and hold City, its officers, officials, agents and employees harmless for, of and from any loss, including but not limited to fines, penalties and corrective measures City may sustain by reason of Contractor's failure to comply with said laws, rules and regulations in connection with the performance of this Agreement.

22. Governing Law and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California and Contractor agrees to submit to the jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in Orange County, California.

23. Integration. This Agreement constitutes the entire agreement of the parties. No other agreement, oral or written, pertaining to the work to be performed under this Agreement shall be of any force or effect unless it is in writing and signed by both parties. Any work performed which is inconsistent with or in violation of the provisions of this Agree ment shall not be compensated.

24. Notice. Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally , by e -mail, or by first class U.S. mail, postage prepaid, to each party at the address listed below. Either party may change the notice address by notifying the other party in writing. Notices shall be deemed received upon receipt of same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e- mail shall be deemed received on the date of the e-mail transmission.

“CONTRACTOR” “CITY”

Verde Design, Inc. City of Orange
3685 Main Street, Suite 350 300 E. Chapman Avenue
Riverside, CA 92501 Orange, CA 92866-1591
Attn.: Mike Salazar Attn.: Nathan Bluhm

Telephone: 408-850-3420 Telephone: 714-744-6491
E-Mail: [email protected] E-Mail: [email protected]

25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures.

[Signatures on next page]

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IN WITNESS of this Agreement, the parties have entered into this Agreement as of the year and day first above written.

“CONTRACTOR” “CITY”

VERDE DESIGN, INC., a California corporation CITY OF ORANGE, a municipal corporation

*By: By:

Printed Name: Daniel R. Slater, Mayor
Title:

*By: ATTEST:

Printed Name:

Title:

Pamela Coleman, City Clerk

APPROVED AS TO FORM:

Nathalie Adourian
Senior Assistant City Attorney

*NOTE: City requires the following signature(s) on behalf of the Contractor:
-- (1) the Chairman of the Board, the President or a Vice-President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR -- The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to City.

√

26 EXHIBIT “A”

SCOPE OF SERVICES

[Beneath this sheet.]
27 CITY OF ORANGE

COMMUNITY SERVICES DEPARTMENT www.cityoforange.org PHONE: (714) 744-7274 FAX: (714) 744-7251

EL MODENA PARK BALL FIELD NETTING DESIGN
REQUEST FOR PROPOSALS (RFP) NO. 23-24.10

PROPOSALS DUE: OCTOBER 19, 2023
TIME: 2:00 PM

The documents contained in this Request for Proposals document are considered to be the invitation and not the full final representation of the documents needed to submit a successful response to the proposal described herein.

Interested proposers should subscribe to receive proposal updates and notifications via the City’s website at:
https://public.govdelivery.com/accounts/CACITYORANGE/subscriber/new as well as emailing [email protected] to be added to the contact list for this specific proposal list in order to receive emailed updates of any revised/additional information and addenda.

It is the responsibility of the interested proposer to request being added to the proposer list and to check the website frequently to look for any additional updates.

Project Name: El Modena Park Ball Field Netting Design Location Address: El Modena Park (555 S. Hewes Street Orange, CA 92869) Contact Name: Nathan Bluhm, Senior Project/Landscape Coordinator Phone Number: 714-532-6491
E-Mail Address: [email protected]

INTRODUCTION:

The City of Orange, a Municipal Corporation, is requesting proposals from qualified professional firms for the design and corresponding preparation of construction documents, plans, specifications and cost estimates for the El Modena Ball Field Netting Design project. The project will also include a comprehensive professional analysis that accurately studies the foul ball trajectory of age-appropriate baseball players for the baseball field at El Modena Park.

COMMUNITY SERVICES DEPARTMENT • 230 E. CHAPMAN AVENUE • ORANGE, CA 92866 Exhibit "A"
28 PROJECT BOUNDARIES: The site map below represents a general description o f the project boundaries. A more comprehensive description will be identified and established at the mandatory job walk.

TIMELINE (APPROXIMATE):

1. Mandatory job walk: October 3, 2023, at 1:30 PM

2. Deadline for questions: October 5, 2023, by 2:00 PM

3. Proposals due: October 19, 2023, by 2:00 PM

4. Presentation to City Council: January 23, 2024

5. Notice to Proceed: TBD

29 PROPOSAL SUBMISSION AND QUESTIONS:

Provide response to the above REQUEST FOR PROPOSALS on attached Proposal Sheet and return all pages of the Request for proposals (including the scope and specification sections) and references.

Please email any questions you may have to Nathan Bluhm, Senior Project/Landscape Coordinator at [email protected] and [email protected] on or before Thursday, October 5, by 2:00PM.

Proposals must be received on Thursday October 19, 2023 by 2:00 PM at the City of Orange City Clerk’s Office (300 E. Chapman Ave., Orange, CA 92866). Responses may be sent via U.S. Mail or de livered pe rsonally to the ab ove address. Please provide three (3) copies of proposal packets and a separate sealed fee proposal.

PROPOSAL PACKETS MUST BE LABELLED APPROPRIATELY:

RFP 23-24.10 – El Modena Park Ball Field Netting Design Attn: City of Orange, City Clerk’s Office

The City reserves the right to reject any and all Proposals and any item or items therein, and to waive any non-conformity of Proposals with this Request for Proposals , whether of a technical or substantive nature, as the interest of the City may require.

PROJECT DESCRIPTION:

The project will include a foul ball trajectory study and subsequent analysis as necessary to calculate the netting height and span of the protective netting to provide appropriate protection of adjacent homes, park users, street traffic, and parked cars . The project will also include demolition and removal of the existing backstop and provide a new safety netting system along the first and thi rd baselines of the baseball field which may or may not include utilizing the existing light poles. The project should include but not be limited to: new support poles and/or potential use of existing Musco light poles as support system for new netting, safety netting, , and electrical infrastructure for future security cameras.

GENERAL PROVISIONS:

• A mandatory job walk has been scheduled for October 3 , 2023 at El Modena Park located at 555 S. Hewes Street, Orange, CA 92869 at 1:30 PM. • The successful firm shall, at all times, carry valid insurance, which meets all City of Orange insurance requirements as outlined in Attachment No. 1. • All described design work shall be in compliance with the City of Orange Public Works Standard Plans and Specifications, the current edition of the CalTrans “Green Book,” the City of Orange Landscape Standards and Specifications, and City of Orange Par ks Construction Standards.
• If applicable, the successful firm shall pay prevailing wages per the current Department of Industrial Relations wage rate (including all scheduled increases) and furnish Certified Payroll Reports for all workdays.

30 SCOPE OF SERVICES:

The following is a general outline of the scope of services to be provided by the consultant. While it is intended that the following scope include all elements essential to develop the project, those submitting proposals are advised to perform their own field reconnaissance and include any items which they feel may have been overlooked.

TASK 1 – CONCEPTUAL/PRELIMINARY PLAN

The successful firm is to prepare a Conceptual/Preliminary Plan with schedules and probable construction cost estimates. Consultant services shall include, but not be limited to the following:

• An understanding of the project design program, and the project site and scope. • Understanding and review of available existing record drawings and structural calculations.

The City of Orange will provide to the successful firm all available existing AutoCad/electronic files of the park site.
• Conduct site reconnaissance and site survey to confirm existing conditions and constraints. • A professional analysis that accurately studies the foul ball trajectory of age-appropriate baseball players for the El Modena Baseball Field. This analysis will serve to determine the required height of the new first and third foul line protective netting. • New backstop area including fencing and/or netting.
• New first and third foul line protective fencing and/or netting. • New support poles and/or potential use of existing Musco LED field lighting poles capable of supporting weight and tension of lights and/or safety netting. • Provide a schedule and timeline showing activity and duration for each task, and relevant milestones.
• Conduct a kick-off meeting and subsequent meetings with City staff. • Prepare conceptual/preliminary plans and support drawings (i.e., section/elevations), and information such as materials boards, etc. as necessary to convey design intent. • Initial Cost Analysis/Estimate
• Provide cost saving alternatives for the City to consider.

PRELIMINARY PLAN REQUIREMENTS:

Preliminary Plan shall include, but not be limited to the following:

• Title Page with project title.
• Scale and north arrow.
• Graphic symbols showing existing trees, sh rub, ground cover/turf and general landscape areas.
• A legend that references and clearly identifies, but is not limited to, all perimeter and interior sidewalks/paving areas/pathways, trees, baseball field, parking area, park lighting, bleacher seating areas, fencing/walls and relevant site amenities. • Name, license number, address and phone number of firm. • Project limits and/or boundaries.

Additional Notes for Task-1:

• The Conceptual/Preliminary plan is subject to criteria as specified within the City of Orange Landscape Standards and Specifications Section III, and Parks Construction Standards Section I - Design Guidelines and Construction Document Preparation. • The final scale of the finished Conceptual/Preliminary plan will be determined by the City of Orange representative and the design firm. 31

• The Conceptual/Preliminary plan is subject to City of Orange staff review. Any needed revisions to the plan will be provided at no extra fee. • The design firm is to identify within the fee proposal, the number of City Staff meetings that will be included within the preliminary/conceptual design Task 1. • Placement of all new facilities and improvements including setbacks, and any hardscape and/or paving adjustments for typical pedestrian and maintenance vehicle ingress/egress into and around the new facilities and improvements.
• New landscaping and/or remediation of existing landscape as needed. • A legend that references and clearly identifies, but is not limited to, all perimeter and interior sidewalks, existing structures and buildings, trees, parking area(s), park lighting, seating areas, paving/hardscape areas, fencing/walls and any/all park site amenities.

ESTIMATED COST/VALUE ENGINEERING OF PROPOSED WORK:

The successful firm is to prepare an initial cost analysis/estimate of probable construction costs, and provide updated costs and value engineering based on the Preliminary Plan. Value engineering is to be comprehensive and include all reasonable and relevant phases of construction/installation costs.

TASK 2 - CONSTRUCTION DOCUMENTS (CD) PLAN SET:

The successful firm is to prepare final working drawings (plans, details, schedules, calculations and specifications) for the new improvements as well as any park elements/areas that are to be renovated, to reflect the conclusion s of the City staff review and all approvals. Plans and specifications shall comply with all adopted Federal, State, and local laws, ordinances and codes and shall include the following but not be limited to:

• Cover Sheet
• Grading and Drainage Plans and Details (as necessary) • Construction Plans and Details
• Structural Plans and Details
• Electrical Plans and Details
• Utility Plans and Details (as necessary)
• Irrigation Plans and Details (as necessary)
• Planting Plans and Details (as necessary)
• Specifications

ADDITIONAL NOTES FOR CONSTRUCTION DOCUMENT PLAN PREPARATION:

• Construction documents are to be bid ready, including all general notes and specifications. • The construction documents are to comply with all City of Orange Design Guidelines , Standards, and Specifications, and if applicable, State of California irrigation and City of Orange planting design standards.
• Irrigation plans are to comply with the City’s guidelines for Water Efficient Landscape Ordinance (WELO).
• The construction document plans/sheets are to be drawn no smaller than 1”= 20’ scale.

UPDATED COST/VALUE ENGINEERING OF PROPOSED WORK:

The successful firm is to prepare an updated opinion of probable construction costs for the proposed work based on the final 100% plan set. Cost estimate and value engineering is to be comprehensive and include all reasonable and relevant phases of construction/installation. 32 SPECIAL INSTRUCTIONS:

The successful firm is to include within this request for proposal the following:

1. A cover letter that conforms to the following:
a. Signed by a person authorized to bind the firm contractually. b. Provides the name, title, address, and telephone number of the individual to whom correspondence and other contacts should be directed during the firm’s selection process.
c. Provides the name, title, address, and telephon e n umber of the individual who is authorized to contractually bind the firm.

2. Firm Information:
a. Legal name of firm and type of organization.
b. All professional license numbers.
c. Firm location(s) and phone number(s).
d. Date firm established.
e. Number of employees.
f. Name, position, summary of qualifications and related experience, and proposed responsibilities of the firm’s project manager and key personnel on the proposed project team, including any sub consultant positions or sub consultant tasks that would be related to this RFP. Submit appropriate team member resumes as an attachment.

3. Firm Experience:

Provide a brief description of three (3) projects for which the firm has provided a comparable or similar service during the past ten years, demonstrating its experience on similar projects to those contemplated in this bid proposal. Include the following:
a. Client name, contact name, and phone number.
b. Project description and location.
c. Dates of the project(s).
d. Description of services provided.
e. Total cost of services provided.

4. Timeline for completion of work for all Tasks.

5. An hourly fee schedule for additional or extra work (to be submitted separately in a sealed envelope with the Fee Proposal Summary).

6. If awarded this contract, the successful firm is to provide a project schedule showing a starting and completion timeline for all phases of work, as well as a projected timeline for construction.

SELECTION CRITERIA:

Evaluation of the proposals shall be based on a competitive selection process. Fiscal responsibility is a priority for the City, however the evaluation of proposals will not be limited to price alone. The City will select the most qualified firm on the basis of demonstrated competenc e, experience, references, and value for services to be performed. The City also reserves the privilege of interviewing the top candidates.

The successful proposal will demonstrate experience in providing consultant services as described within this RFP. While the experience and resources of the successful firm are important, it is critical 33

that the manager proposed for overall authority on the project have extensive relevant experience and capability. The consultant will work effectively with City staff and complete assigned tasks within budget and within the project schedule.

The following criteria shall be used in selecting the firm ultimately chosen for this project:

A. Firm experience and staff qualifications of the specific individuals who will work on the project, as well as experience of any sub consultants working on this project.

B. Demonstrated record of success by the consultant on work previously performed for the City and/or other municipalities or enterprises. Firm’s responsiveness to the overall request for information within this RFP.

The Selection Committee will make a final choice based on the information submitted, and the successful consultant will execute an agreement for Consultant Design Services with the City of Orange for the completion of this work. Top scoring firms may be required to answer subsequent questions and/or participate in an interview . The City of Orange reserves the right to negotiate cost of work within the Request for Proposal.

The following criteria shall be applied to each submittal:

Each Firm is to submit in response to this RFP, a Fee Proposal in a separate sealed envelope including a copy of an hourly fee schedule (see Attachment A: Fee Proposal Summary) Note- Each Firm is to include with said Fee Proposal Summary a detailed schedule showing the Firm’s hours/costing that will be dedicated to each Task.

The City reserves the right to revise this RFP prior to the date the proposals are due. Revisions to the RFP will be sent by Addenda to all known participants. The City reserves the right to procure or contract for work. All proposals s ubmitted in response to this RFP become the property of the City and are public record. The City reserves the right to delay or cancel, in part or in its entirety, this RFP including, but not limited to: selection schedule, submittal date, and submittal requirements. All known participants shall be notified of any cancellation or revisions prior to the submittal date. The City also reserves the right to request additional information and clarifications regarding any proposals received.

It is understood that:

1. The successful firm represents and warrants that it has thoroughly investigated and considered the scope of services and fully understands the difficulties and restrictions in performing the work. The successful firm represents that it is experienced in performing the work and will follow professional standards in performance of the work. All services provided shall conform to all federal, state and local laws, rules and regulations and to the best professional standards and practices.

2. At the conclusion of each phase of the project, the successful firm will include and submit to the City of Orange, all electronic files in both AutoCAD format as well as PDF.

3. The City of Orange will provide to the successful firm all available, existing AutoCAD/electronic files of the El Modena Park site.

34 RFP 23-24.10 EL MODENA PARK BALL FIELD NETTING DESIGN

Fee Proposal

Date: ___________

Proposal Submitted by:

Company Name: _

Address: _

Phone Number:

E-mail Address:

Contact Name:

Signature of Responsible Officer or Employee Print Name

The stated bid amount below c onstitutes the total dollar amount to perfo rm the work described in the above scope of services to include all that is required to provide the work product and/or install all materials required to complete the work to a p rofessional workmanship standard, and to install and apply all materials per all manufacturer’s specifications and recommendations.

Contractor represents and warrants that it has thoroughly investigated and considered the scope of services and fully understands the difficulties and restrictions in performing the work. Contractor represents that it is experienced in performing the work and will follow professional standards in performance of the work. All services provided shall conform to all federal, state and local laws, rul es and regulations and to the best p rofessional standards and practices.

TOTAL BID AMOUNT: (Lump Sum):$_________________________ 35 LIST OF SUBCONTRACTS

A. The undersigned intends to subcontract a portion of this project to the following subcontracts (Note: Refer to Section 2.3 of the Standard Specifications and Section 4100 through 4113 of the California Contract Code for SUBCONTRACT DISCLOSURE
REQUIREMENTS.

NAME OF SUBCONTRACTOR LICENSE BID ITEM NUMBER(s) PERCENT OF
CHECK IF DESCRIBE WORK WHEN $ AMOUNT
AND ADDRESS NO. BID ITEM
SUBBED
SPECIALITY LESS THAN 100% OF WORK

IS SUBBED

BASED ON
BID
AMOUNT

B. The undersigned DOES NOT INTEND to subcontract any portion of this project.

NOTE: The bidder shall check Box A or B as applicable. If the bidder does not check either box, it will be deemed that he has checked Box B.

Signature of the Bidder

36 PUBLIC CONTRACT CODE

Public Contract Code Section 10285.1 Statement

In conformance with Public Contract Code Section 10285.1 (Chapter 376, Stats. 1985), the bidder hereby declares under penalty of perjury under the laws of the State of California that the bidder has convicted
, has not been

within the preceding three years of any offenses referred to in that section, including any charge of fraud, bribery, collusion, conspiracy, or any other act in violation of any state or Federal antitrust law in connection with the bidding upon, award of, or performance of, any public works contract, as defined in Public Contract Code Section 1101, with any public entity, as defined in Public Contract Code Section 1100, including the Regents of the University of California or the Trustees of the California State University. The term "bidder" is understood to include any partner, member, officer, director, responsible managing officer, or responsible managing employee thereof, as referred to in Section 10285.1.

Note: The bidder must place a check mark after "has" or "has not" in one of the blank spaces provided. The above Statement is part of the Bid. Signing this Bid on the signature portion thereof shall also constitute signature of this Statement. Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution.

Public Contract Code Section 10162 Questionnaire

In conformance with Public Contract Code Section 10162, the Bidder shall complete, under penalty of perjury, the following questionnaire:

Has the bidder, any officer of the bidder, or any employee of the bidder who has a proprietary interest in the bidder, ever been disqualified, removed, or otherwise prevented from bidding on, or completing a federal, state, or local government project because of a violation of law or a safety regulation?

Yes No

If the answer is yes, explain the circumstances in the following space.

Public Contract Code 10232 Statement

In conformance with Public Contract Code Section 10232, the Contractor, hereby states under penalty of perjury, that no more than one final unappealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding two year period because of the Contractor's failure to comply with an order of a federal court which orders the Contractor to comply with an order of the National Labor Relations Board.

Note: The above Statement and Questionnaire are part of the Bid. Signing this Bid on the signature portion thereof shall also constitute signature of this Statement and Questionnaire. Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution. 37 Non-collusion Affidavit

(Title 23 United States Code Section 112 and
Public Contract Code Section
7106)

To the CITY OF ORANGE – DEPARTMENT OF COMMUNITY

SERVICES

In conformance with Title 23 United States Code Section 112 and Public Contract Code 7106 the bidder declares that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bi d, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indir ectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, c ompany association, o rganization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid.

Note: The above Non-collusion Affidavit is part of the Bid. Signing this Bid on the signature portion thereof shall also constitute signature of this Non- collusion Affidavit.

Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution.
38 DEBARMENT AND SUSPENSION CERTIFICATION

TITLE 49, CODE OF FEDERAL REGULATIONS,
PART 29

The bidder, under penalty of perjury, certifies that, except as noted below, he/she or any other person associated therewith in the capacity of owner, partner, director, officer, manager:
• is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any Federal agency;
• has not been suspended, debarred, voluntarily excluded or determined ineligible by any

Federal agency within the past 3 years;

• does not have a proposed debarment pending; and

• has not been indicted, convicted, or had a civil judgement rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past 3 years.

If there are any exceptions to this certification, insert the exceptions in the following space.

Exceptions will not necessarily result in denial of award, but will be considered in determining bidder responsibility. For any exception noted above, indicate below to whom it applies, initiating agency, and dates of action.

Notes: Providing false information may result in criminal prosecution or administrative sanctions.

The above certification is part of the Bid. Signing this Bid on the signature portion thereof shall also constitute signature of this Certification.
39 The undersigned bidder hereby represents as follows:

That no Councilman, officer, agent, or employee of the City of Orange, is personally interested, directly or indirectly, in the Contract, or the compensation to be paid hereunder:

That this bid is made without connection with any person, firm or corporation making a bid for the same work, and is in all respects fair, and without collusion or fraud.

By my signature on this bid I certify, under penalty of perjury under the laws of the State of California, that the foregoing questionnaire and statements of Public Contract Code Sections 10162, 10232 and 10285.1 are true and correct and that the bidder has complied with the requirements of Section 8103 of the Fair Employment and Housing Commission Regulations (Chapter 5, Title 2 of the California Administrative Code). By my signature on this bid I further certify, under penalty of perjury under the laws of the State of California and the United States of America, that the Noncollusion Affidavit required by Title 23 United States Code, Section 112 and Public Contract Code Section 7106; and the Title 49 Code of Federal Regulations, Part 29 Debarment and Suspension Certification are true and correct.

Date:

Signature and Title of Bidder

(If an individual, so state. If a firm or co-partnership, state the firm name and give the names of all individual co-partners composing the firm. If a corporation, state legal name of corporation, also names of President, Secretary, Treasurer and Manager thereof).

NAME OF BIDDER

BUSINESS P.O. BOX

CITY, STATE, ZIP

BUSINESS STREET ADDRESS
(Please include even if P.O. Box is used)

CITY, STATE, ZIP

PLACE OF BUSINESS (Include City & State)

PLACE OF RESIDENCE (Include City & State)

Telephone No. ( ) Fax No. ( )

Licensed in accordance with an Act providing for the registration of Contractors.

LICENSE NUMBER

LICENSE CLASS
40 Attachment 1: EL MODENA PARK BALL FIELD NETTING DESIGN

Sample Liability Insurance

Contractor shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors.

Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage (occurrence Form CG 00 01).

2. Insurance Services Office Form Number CA 00 01 covering Automobile Liability, code 1 (any auto).

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

Contractor shall maintain limits no less than:

1. General Liability: $2,000,000 per occurrence for bodily injury, personal injury and pr operty damage. If
Commercial General Liability i nsurance or
other form with a general aggregate limit
is used, either the ge neral aggregate li mit
shall apply separately to this
project/location or the ge neral aggregate
limit shall be twice the required occurrence
limit.

2. Automobile Liability:

$1,000,000

per accident for bodily injury and property
damage.

3. Workers’ Compensation:

As required by the State of California.

4. Employer’s Liability:

$1,000,000

per accident for bodily injury or disease.

Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, it officers, officials and employees; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

Each policy of general liability and automotive liability insurance shall contain, or be endorsed to contain, the following provisions:
41 1. The City, its officers, officials, agents and employees are to be covered as additional insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor; and with respect to liability arising out of work or operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work or operations. General Liability coverage shall be provided in the form of an Additional Insured Endorsement (Insurance Services Office, Inc. Form CG 20 10 11 85 or such other form as may be acceptable to the City) to the Contractor’s insurance policy, or as a separate owner’s policy.

2. For any claims related to this project, the Contractor’s insurance coverage shall be primary insurance as respects the City, its officers, officials and employees. A ny insurance or self- insurance maintained by the City, its officers, officials and employees shall be excess of the Contractor’s insurance and shall not contribute with it.

3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice has been provided to the City

The Contractor s hall furnish the City with or iginal certificates of i nsurance and endorsements effecting coverage required by this clause. The endorsements should be on forms acceptable to City. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to do so shall not operate as a w aiver of these insurance requirements. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by th ese specifications at any time.

All insurance procured and maintained by the Contractor shall be issued by insurers admitted to conduct the pertinent line of insurance business in the State of California and having a rating of Grade A or better and Class VII or better by the latest edition of Best's Key Rating Guide.

Contractor shall immediately notify the City if any required insurance lapses or is ot herwise modified and cease performance of this Agreement unless otherwise directed by the City. In such a case, the City may procure insurance or self-insure the risk and charge Contractor for such costs and any and all damages resulting therefrom, by way of set-off from any sums owed Contractor.

Contractor hereby agrees to waive subrogation, which any insurer of the Contractor may acquire from the Contractor by virtue of the payment of any loss. The Contractor agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation.

The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.

The Contractor shall require and verify that all subcontractors maintain insurance meeting all of the requirements stated herein.

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Agenda Item
City Council
Item #: 3.3. 1/23/2024 File #: 24-0047
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Trang Nguyen, Finance Director

1. SUBJECT
Agreement with Cullen & Associates, Inc., for an Interim Assistant Finance Director position.

2. SUMMARY
This professional services agreement will provide critical assistance to the Finance Director in the daily oversight and management of the various activities in the Finance Department.

3. RECOMMENDED ACTION
Approve the agreement with Cullen & Associates, Inc. in the amount of $80,000 for assistance in the daily oversight and management of the activities in the Finance Department; and authorize the Mayor and City Clerk to execute on behalf of the City.

4. FISCAL IMPACT
The total expenditure for this agreement will be funded by the General Fund (100) for $80,000 in account number 100.1231.51670.00000. Funding will be derived from anticipated salary savings from the Fiscal Year 2023-2024 adopted budget in the General Fund.

5. STRATEGIC PLAN GOALS
Goal 2: Be a fiscally healthy community
a: Expend fiscal resources responsibly.
d: Effectively manage and develop City assets.

6. DISCUSSION AND BACKGROUND
The Finance Department’s Assistant Director will be retiring from City service next month.

While the recruitment is underway, this agreement with Cullen & Associates, Inc. provides oversight in this critical area and management of the activities in the Finance Department, including completing the year-end audits and other required reports for the fiscal year ended June 30, 2023. In addition, the Interim Assistant Finance Director will be assisting the Director with reviewing the current business practices and internal policies and providing recommendations to the City Manager for consideration.

The agreement will be funded through anticipated salary savings.

7. ATTACHMENTS
City of Orange Printed on 1/17/2024Page 1 of 2
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66 Item #: 3.3. 1/23/2024 File #: 24-0047
· Professional Services Agreement
City of Orange Printed on 1/17/2024Page 2 of 2
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67 Agenda Item
City Council
Item #: 3.3. 1/23/2024 File #: 24-0047
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Trang Nguyen, Finance Director

1. SUBJECT
Agreement with Cullen & Associates, Inc., for an Interim Assistant Finance Director position.

2. SUMMARY
This professional services agreement will provide critical assistance to the Finance Director in the daily oversight and management of the various activities in the Finance Department.

5. STRATEGIC PLAN GOALS
Goal 2: Be a fiscally healthy community
a: Expend fiscal resources responsibly.
d: Effectively manage and develop City assets.

6. DISCUSSION AND BACKGROUND
The Finance Department’s Assistant Director will be retiring from City service next month.

The agreement will be funded through anticipated salary savings.

7. ATTACHMENTS
City of Orange Printed on 1/17/2024Page 1 of 2
powered by Legistar™
68 Item #: 3.3. 1/23/2024 File #: 24-0047
· Professional Services Agreement
City of Orange Printed on 1/17/2024Page 2 of 2
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69 PROFESSIONAL SERVICES AGREEMENT
[Interim Assistant Finance Director]

THIS PROFESSIONAL SERVICES AGREEMENT (the “Agreement”) is made at Orange, California, on thi s ______ day of _________________, 2024 (the “Effective Date”) by and between the CITY OF ORANGE, a municipal corporation (“City”), and CULLEN & ASSOCIATES, INC., a S-Corporation (“Contractor”), who agree as follows:

Contractor shall perform all services in a manner reasonably satisfactory to City and in a manner in conformance with the standards of quality normally observed by an entity provid ing such services to a municipal agency. All services provided shall conform to all federal, state and local laws, rules and regulations and to the best professional standards and practices. The terms and conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A" to the contrary.

Trang Nguyen, Finance Director (“City’s Project Manager”), shall be the person to whom Contractor will report for the performance of services hereunder. It is understood that Contractor’s performance hereunder shall be under the supervision of City’s Project Manager (or his/her designee), that Contractor shall coordinate its services hereunder with City’s Project Manager to the extent required by City’s Project Manager, and that all performances required hereunder by Contractor shall be performed to the satisfaction of City’s Project Manager and the City Manager.

2. Compensation and Fees.

a. Contractor's total compensation for all services performed under this Agreement, shall not exceed EIGHTY THOUSAND DOLLARS and 00/100 ($80,000.00) without the prior written authorization of City.

3. Payment.

a. As scheduled services are completed, Contractor shall submit to City an invoice for the services completed, authorized expenses and authorized extra work actually performed or incurred.
70 2

b. All such invoices shall state the basis for the amount invoiced, including services completed, the number of hours spent and any extra work performed.

c. City will pay Contractor the amount invoiced within thirty (30) days after the approval of the invoice.

d. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice.

6. Independent Contractor . At all times during the term of this Agreement, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar as the result of Contractor's services rendered pursuant to this Agreement. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be required for furnishing services pursuant to this Agreement. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security withholding and all other wages, salaries, benefits, taxe s, exactions, and regulations of any nature whatsoever.

71 3

8. Designated Persons. Only those qualified persons authorized by City’s Project Manager, or as designated in Exhibit “A,” shall perform work provided for under this Agreement.

It is understood by the parties that clerical and other nonprofessional work may be performed by persons other than those designated.

10. Time of Completion . Except as otherwise specified in Exhibit “A,” Contractor shall commence the work provided for in this Agreement within five (5) days of the Effective Date of this Agreement and diligently prosecute completion of the work in accordance with the time period set forth in Exhibit “A” hereto] or as otherwise agreed to by and between the representatives of the parties.

11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall do all things necessary and incidental to the prosecution of Contractor's work.

12. Reserved.

13. Delays and Extensions of Time. Contractor's sole remedy for delays outside its control, other than those delays caused by City, shall be an extension of time. No matter what the cause of the delay, Contractor must document any delay and request an extension of time in writing at the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the length of the delay outside Contractor’s control. If Contractor believes that delays caused by City will cause it to incur ad ditional costs, it must specify, in writing, why the delay has caused additional costs to be incurred and the exact amount of such cost at the time the delay occurs. No additional costs can be paid that exceed the not to exceed amount stated in Section 2.a, above, absent a written amendment to this Agreement.

15. Equal Employment Opportunity . During the performance of this Agreement, Contractor agrees as follows:

a. Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. 72 4
Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.

17. Indemnity.

a. To the fullest extent permitted by law , Contractor agrees to indemnify, defend and hold City, its City Council and each member thereof, and the officers, officials, agents and employees of City (collectively the “Indemnitees”) entirely harmless from all liability arising out of:

c. Except for the Indemnitees, the indemnifications provided in this Agreement shall not be construed to extend any third party indemnification rights of any kind to any person or entity which is not a signatory to this Agreement.

18. Insurance.

a. Contractor shall carry workers ’ compensation insurance as required by law for the protection of its employees during the progress of the work. Contractor understands that it is an independent contractor and not entitled to any worker s’ compensation benefits under any City program.

b. Contractor shall maintain during the life of this Agreement the following minimum amount of comprehensive general liability insurance or commercial general liability insurance: the greater of (1) One Million Dollars ( $1,000,000) per occurrence ; or (2) all the insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover bodily injury, death and property damage and be written on an occurrence basis.

c. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of Contractor under this Agreement.

d. Each policy of general liability and automotive liability shall provide that City, its officers, officials, agents, and employees are declared to be additional insureds under the terms of the policy, but only with respect to the work performed by Contractor under this Agreement. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional insured as a contracting party. The minimum coverage required by Subsection 18.b and c, above, shall apply to City as an additional insured. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth herein shall be maintained for the duration of the Agreement.

e. Contractor shall maintain during the life of this Agreement professional liability insurance covering errors and omissions arising out of the performance of this Agreement with a minimum limit of One Million Dollars ($1,000,000) per claim. Contractor agrees to keep 74 6
such policy in force and effect for at least five (5) years from the date of completion of this Agreement.

f. The insurance policies maintained by Contractor shall be primary insurance and no insurance held or owned by City shall be called upon to cover any loss under the policy.

Contractor will determine its own needs in procurement of insurance to cover liabilities other than as stated above.

g. Before Contractor performs any work or prepares or delivers any materials, Contractor shall furnish certificates of insurance and endorsements, as required by City, evidencing the aforementioned minimum insurance coverages on forms acceptable to City, which shall provide that the insurance in force will not be canceled or allowed to lapse without at least ten (10) days’ prior written notice to City.

h. Except for professional liability insurance coverage that may be required by this Agreement, all insurance maintained by Contractor shall be issued by companies admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide. In the case of professional liability insurance coverage, such coverage shall be issued by companies either licensed or admitted to conduct business in Califo rnia so long as such insurer pos sesses the aforementioned Best rating.

i Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Agreement unless otherwise directed by City.

In such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs and any and all damages resulting therefrom, by way of set -off from any sums owed Contractor.

j. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.

k. Contractor shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor to City for review and approval. All coverages for subcontractors shall be subject to all of the requirements stated herein.

Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with 75 7
this Agreement, unless termination by City shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits.

21. Compliance with all Laws/Immigration Laws.

a. Contractor shall be knowledgeable of and comply with all local, state and federal laws which may apply to the performance of this Agreement.

b. If the work provided for in this Agreement constitutes a “public works,” as that term is defined in Section 1720 of the California Labor Code, for which prevailing wages must be paid, to the extent Contractor’s employees will perform any work that falls within any of the classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it, shall pay not less than the specified preva iling rates of wages to all such workers . The general prevailing wage determinations for c rafts can be located on the web site of the Department of Industrial Relations (www.dir.ca.gov/DLSR). Additionally, to perform work under this Contract, Contractor must meet all State registration requirements and criteria, including project compliance monitoring.

c. Contractor represents and warrants that it:

(2) Has not and will not knowingly employ any individual to perform services under this Agreement who is ineligible to work in the United States or under the terms of this Agreement; and

76 8
(4) Has responded, and shall at all times during the term of this Agreement respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I -9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration.

d. Contractor shall require all subcontractors or subconsultants to make the same representations and warranties as set forth in Subsection 21.c.

f. Contractor shall require all subcontractors or sub-consultants to make the same verification as set forth in Subsection 21.e.

g. If Contractor or subcontractor knowingly employs an employee providing work under this Agreement who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee, that shall constitute a material breach of this Agreement and may be cause for immediate termination of this Agreement by City.

23. Integration. This Agreement constitutes the entire agreement of the parties. No other agreement, oral or written, pertaining to the work to be performed under this Agreement shall be of any force or effect unless it is in writing and signed by both parties. Any wo rk performed which is inconsistent with or in violation of the provisions of this Agree ment shall not be compensated.

“CONTRACTOR” “CITY”

Cullen & Associates, Inc. City of Orange
709a N. Lucia Avenue 300 E. Chapman Avenue
Redondo Beach, CA 90277 Orange, CA 92866-1591
Attn.: Deborah Cullen Attn.: Trang Nguyen

Telephone: (310) 488-9497 Telephone: (714) 744-2235 E-Mail: [email protected] E-Mail: [email protected]

[Remainder of page intentionally left blank; signatures on next page]

78 10
IN WITNESS of this Agreement, the parties have entered into this Agreement as of the year and day first above written.

“CONTRACTOR” “CITY”

CULLEN & ASSOCIATES, INC., a S-Corporation CITY OF ORANGE, a municipal corporation

*By: By:

Printed Name: Daniel R. Slater, Mayor
Title:

*By: ATTEST:

Printed Name:

Title:

Pamela Coleman, City Clerk

APPROVED AS TO FORM:

Nathalie Adourian
Senior Assistant City Attorney

√

79 EXHIBIT “A”

SCOPE OF SERVICES

The scope of duties and responsibilities include but are not limited to:

• Assist in daily oversight and management of the activities in the Finance Department: Treasury, Investment, Finance, Utility Billing, Purchasing, Payroll, Budget, and Accounting;
• Acts as the Director of Finance in her absence;
• Assist in preparation and coordination of staff report for City Council meetings, committee meetings and oversight committees;
• Attend council and committee meetings as needed;
• Review and update current policies and procedures;
• Create and implement new policies and procedures as identified and approved by the Finance Director; and
• Assist the Finance Director with other duties and responsibilities as needed.

The proposed work schedule would not exceed 40 hours per week and 960 hours per fiscal year.

The cost of services provided would be at an hourly rate of $120 per hour, not to exceed $80,000. The duration of the contract is not to exceed 6 months. 80 Agenda Item
City Council
Item #: 3.4. 1/23/2024 File #: 24-0033
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Trang Nguyen, Finance Director

1. SUBJECT
Software Services Agreement with Fifth Asset, Inc. d/b/a DebtBook for Accounting for Debt Service, Leases, and Subscription Based Information Technology Arrangements.

2. SUMMARY
A three-year Agreement with Fifth Asset, Inc. d/b/a DebtBook to provide a software-based module for efficiently tracking the City’s debt service obligations as well as Accounting for Leases and Subscription Based Information Technology Arrangements.

3. RECOMMENDED ACTION
Approve the agreement with Fifth Asset, Inc. d/b/a DebtBook in the amount of $43,500 for a software subscription to track the City’sdebt service obligations, leases, and Subscription Based Information Technology Arrangements; and authorize the Mayor and City Clerk to execute on behalf of the City.

4. FISCAL IMPACT
The total expenditure for this three-year agreement is $43,500 and will be funded as follows:

General Fund (100) $37,500 in acct #100.1231.51670.00000 Orange Merged Capital Projects (940) $ 3,000 in acct #940.9810.51630.00000 CFD 91-2 Serrano Heights (876) $ 1,500 in acct #876.20354 CFD 06-1 Del Rio (878) $ 1,500 in acct #878.20354

5. STRATEGIC PLAN GOALS
Goal 2: Be a fiscally healthy community
a: Expend fiscal resources responsibly.
d: Effectively manage and develop City assets.

6. DISCUSSION AND BACKGROUND
The Governmental Accounting Standards Board (GASB) has recently adopted two new standards which address enhanced accounting for Leases (GASB 87) and Subscription Based Information Technology Arrangements (GASB 96). In each case, it establishes a model for accounting based on the foundational principle that leases and subscriptions are financings of the right to use an City of Orange Printed on 1/17/2024Page 1 of 2
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81 Item #: 3.4. 1/23/2024 File #: 24-0033
underlying asset.

In Fiscal Year 2022-23 the Finance Department’s Accounting Division evaluated options for calculating and tracking these underlying assets and entered into a one-year agreement with Fifth Asset, Inc. d/b/a DebtBook for $8,775. The software greatly enhances the division’sability to properly track and report the 25 leases and 39 subscriptions.

In addition, with the need for greater transparency, staff identified the benefit of using the DebtBook debt management software to accurately report cash flow needs, debt service payments, and debt balances for both the City’s debt issuances (Pension Obligation and Lease Revenue bonds), Successor Agency bonds, and pass-through debt (Del Rio and Serrano Heights CFD bonds).

This agreement is for a three-year term and includes the accounting modules for Leases, Subscription Based Information Technology Arrangements, and Debt Management as follows:

Year 1 $13,000
Year 2 $14,500
Year 3 $16,000

7. ATTACHMENTS
· Software Services Agreement
City of Orange Printed on 1/17/2024Page 2 of 2
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82 Agenda Item
City Council
Item #: 3.4. 1/23/2024 File #: 24-0033
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Trang Nguyen, Finance Director

1. SUBJECT
Software Services Agreement with Fifth Asset, Inc. d/b/a DebtBook for Accounting for Debt Service, Leases, and Subscription Based Information Technology Arrangements.

4. FISCAL IMPACT
The total expenditure for this three-year agreement is $43,500 and will be funded as follows:

5. STRATEGIC PLAN GOALS
Goal 2: Be a fiscally healthy community
a: Expend fiscal resources responsibly.
d: Effectively manage and develop City assets.

6. DISCUSSION AND BACKGROUND
The Governmental Accounting Standards Board (GASB) has recently adopted two new standards which address enhanced accounting for Leases (GASB 87) and Subscription Based Information Technology Arrangements (GASB 96). In each case, it establishes a model for accounting based on the foundational principle that leases and subscriptions are financings of the right to use an City of Orange Printed on 1/17/2024Page 1 of 2
powered by Legistar™
83 Item #: 3.4. 1/23/2024 File #: 24-0033
underlying asset.

This agreement is for a three-year term and includes the accounting modules for Leases, Subscription Based Information Technology Arrangements, and Debt Management as follows:

Year 1 $13,000
Year 2 $14,500
Year 3 $16,000

7. ATTACHMENTS
· Software Services Agreement
City of Orange Printed on 1/17/2024Page 2 of 2
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84 SOFTWARE SERVICES AGREEMENT
[Accounting for Leases & Subscription Based IT Arrangements]

THIS SOFTWARE SERVICES AGREEMENT (the “Agreement”) is made at Orange, California, on thi s ____ day of ___________________, 20 24 (the “Effective Date”) by and between the CITY OF ORANGE, a municipal corporation (“City”), and FIFTH ASSET, INC . d/b/a/DEBTBOOK, a Delaware General Corporation (“Contractor”), who agree as follows:

1. Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide the services set forth in Exhibit “A ,” which is attached hereto and incorporated herein by reference. As a material inducement to City to enter into this Agreement, Contractor represents and warrants that it has thoroughly investigated and considered the scope of services and fully understands the difficulties and restrictions in performing the work. The services which are the subject of this Agreement are not in the usual course of City’s business and City relies on Contractor’s representation that it is independently engaged in the business of providing such services and is experienced in performing the work. Contractor shall perform all services in a manner in conformance with the standards of quality normally observed by an entity provid ing such services to a municipal agency. All services provided shall conform to all applicable federal, state and local laws, rules and regulations and to the best professional standards and practices. The terms and conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A" to the contrary.

Trang Nguyen, Finance Director (“City’s Project Manager”), shall be the person to whom Contractor will report for the performance of services hereunder.

2. Compensation and Fees.

a. Contractor's total compensation for all services performed under this Agreement, shall not exceed FORTY-THREE THOUSAND FIVE HUNDRED DOLLARS and 00/100 ($43,500.00) without the prior written authorization of City.

3. Payment.

a. City will pay Contractor the amount invoiced within thirty (30) days after the approval of the invoice.

b. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice.

4. Change Orders. No payment for extra services caused by a change in the scope or complexity of work, or for any other reason, shall be made unless and until such extra services 85 2
and a price therefor have been previously authorized in writing and approved by City as an amendment to this Agreement. City’s Project Manager is authorized to approve a reduction in the services to be performed and compensation therefor. All amendments shall set forth the changes of work, extension of time, and/or adjustment of the compensation to be paid by City to Contractor and shall be signed by the City’s Project Manager, City Manager or City Council, as applicable.

6. Independent Contractor . At all times during the term of this Agreement, Contractor shall be an independent contractor and not an employee of City. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be required for furnishing services pursuant to this Agreement. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.

Contractor acknowledges that it and any subcontractors, agents or employees employed by Contractor shall not, under any circumstances, be considered employees of City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retiremen t System benefits, or health, life, dental, long-term disability or workers' compensation insurance benefits.

8. Reserved.

10. Reserved.

11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall do all things necessary and incidental to the prosecution of Contractor's work.

12. Reserved.

13. Reserved.
86 3

14. Reserved.

15. Equal Employment Opportunity . During the performance of this Agreement, Contractor agrees as follows:

17. Indemnity.

87 4
(2) Any third-party claim, loss, injury to or death of persons or damage to property directly caused Contractor’s negligence, willful misconduct, or fraud other than a professional act or omission of Contractor, or person, firm or corporation employed by Contractor, either directly or by independent contract, including all damages due to loss or theft sustained by any person, firm or corporation including the Indemnitees, or any of them, arising out of, or in any way connected with the work or services which are the subject of this Agreement, including injury or damage either on or off City’s property; but not for any loss, injury, death or damage caused by the active negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall indemnify any and all third-party claims, actions, suits or other proceedings that may be brought or instituted against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay or satisfy any judgment that may be rendered against the Indemnitees, or any of them, in any action, suit or other proceedings as a result of coverage under this subparagraph.

b. Reserved.

18. Insurance.

a. Contractor shall carry workers ’ compensation insurance as required by law for the protection of its employees during the progress of the work. Contractor understands that it is an independent contractor and not entitled to any worker s’ compensation benefits under any City program.

b. Contractor shall maintain during the life of this Agreement the following minimum amount of comprehensive general liability insurance or commercial general liability insurance: the greater of (1) One Million Dollars ($1,000,000) per occurrence; or (2) Two Million Dollars ($2,000,000) aggregate . Said insurance shall cover bodily injury, death and property damage and be written on an occurrence basis.

c. Contractor shall maintain during the life of this Agreement, the following minimum amount of automotive liability insurance: a combined single limit of One Million Dollars ($1,000,000). Said insurance shall cover bodily injury, death and property damage for all owned, non-owned and hired vehicles and be written on an occurrence basis.

d. Reserved.

e. Each policy of general liability and automotive liability shall provide that City, its officers, officials, agents, and employees are declared to be additional insureds under the 88 5
terms of the policy, but only with respect to the work performed by Contractor under this Agreement. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional insured as a contracting party. The minimum coverage required by Subsection 18.b and c, above, shall apply to City as an additional insured. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth herein shall be maintained for the duration of the Agreement.

g. The insurance policies maintained by Contractor shall be primary insurance and no insurance held or owned by City shall be called upon to cover any loss under the policy.

Contractor will determine its own needs in procurement of insurance to cover liabilities other than as stated above.

i. Except for professional liability insurance coverage that may be required by this Agreement, all insurance maintained by Contractor shall be issued by companies admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide. In the case of professional liability insurance coverage, such coverage shall be issued by companies either licensed or admitted to conduct business in Califo rnia so long as such insurer pos sesses the aforementioned Best rating.

j Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Agreement unless otherwise directed by City.

In such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs and any and all damages resulting therefrom, by way of set -off from any sums owed Contractor.

k. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.

89 6
l. Contractor shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor to City for review and approval. All coverages for subcontractors shall be subject to all of the requirements stated herein.

19. Termination. City shall not be liable for any claim of lost profits.

City and its authorized representatives shall have access to and the right to audit and reproduce any of Contractor's records regarding the services provided under this Agreement. Contractor shall maintain all such records for a period of at least three (3) years after termination or completion of this Agreement. Contractor agrees to make available all such records for inspection or audit at its offices during normal business hours and upon thirty (30) days’ notice from City, and copies thereof shall be furnished if requested.

21. Compliance with all Laws/Immigration Laws.

a. Contractor shall be knowledgeable of and comply with all local, state and federal laws which may apply to the performance of this Agreement.

c. Contractor represents and warrants that it:

(2) Has not and will not knowingly employ any individual to perform services under this Agreement who is ineligible to work in the United States or under the terms of this Agreement; and

90 7
(3) Has properly maintained, and shall at all times during the term of this Agreement properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I -9 for each of Contractor’s employees; and

d. Contractor shall require all subcontractors or subconsultants to make the same representations and warranties as set forth in Subsection 21.c.

f. Contractor shall require all subcontractors or sub-consultants to make the same verification as set forth in Subsection 21.e.

23. Reserved.

24. Notice. Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally , by e -mail, or by first class U.S. mail, postage prepaid, to each party at the address listed below. Either party may change the notice address by notifying the other party in writing. Notices shall be deemed received upon receipt of 91 8
same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e- mail shall be deemed received on the date of the e-mail transmission.

“CONTRACTOR” “CITY”

Fifth Asset, Inc. d/b/a DebtBook City of Orange
PO Box 667950 300 E. Chapman Avenue
Charlotte, NC 28266 Orange, CA 92866-1591
Attn.: Tyler Hunt Attn.: Trang Nguyen

Telephone: 980-357-9244 Telephone: 714-744-2235
E-Mail: [email protected] E-Mail: [email protected]

[Remainder of page intentionally left blank; signatures on next page]

92 9
IN WITNESS of this Agreement, the parties have entered into this Agreement as of the year and day first above written.

“CONTRACTOR” “CITY”

FIFTH ASSET, INC. d/b/a DEBTBOOK, CITY OF ORANGE, a municipal corporation a Delaware General Corporation

*By: By:

Michael Juby, COO Daniel R. Slater, Mayor

*By: ATTEST:

Tyler Traudt, CEO

Pamela Coleman, City Clerk

APPROVED AS TO FORM:

Nathalie Adourian
Senior Assistant City Attorney

√

93 EXHIBIT “A”

SCOPE OF SERVICES

[Beneath this sheet.]
94 December 2023 Form
ORDER FORM AMENDMENT This Order Form Amendment (this “Amendment”) is entered into between the customer executing below (“Customer”) and Fifth Asset, Inc., d/b/a DebtBook (“DebtBook”). The Customer and DebtBook have previously entered into an Agreement, as such term is defined in the Order Form(s) executed and delivered by Customer and DebtBook and attached as Appendix I (collectively, the “Existing Order Form”). The Existing Order Form, as modified by this Amendment, is referred to as the “Renewal Order Form.” Each capitalized term used but not defined in this Amendment has the meaning given in the Agreement. On and after the Amendment Effective Date (as defined below), Customer and DebtBook agree to amend the Existing Order Form and the Agreement as follows: Amendments. Any reference to the “DebtBook Quote” will mean DebtBook’s pricing document attached as Exhibit A. Any reference to the “Customer Terms” will mean any Customer Terms in the Existing Agreement as amended or supplemented, if applicable, by the additional Customer Terms attached as Exhibit B. Any reference to the “Terms & Conditions” will mean the updated Terms & Conditions attached as Exhibit C. Each exhibit to this Amendment is incorporated herein by this reference. Any Notice delivered under the Agreement will be delivered to DebtBook at the address indicated beneath DebtBook’s signature below. Any reference to the “Order Form” will mean the Renewal Order Form, and any reference to the “Agreement” will mean the Agreement as modified by this Amendment. Term. This Amendment establishes a “Renewal Term” beginning on the Amendment Effective Date and remaining in effect for the term indicated in the DebtBook Quote. Services; Fees. The DebtBook Quote sets forth the Services to be provided to Customer under the Renewal Order Form, including the speciﬁc Products to be provided to Customer through its access to the ApplicaVon Services. During the Renewal Term, DebtBook will charge Customer an annual SubscripVon Fee as set forth in the DebtBook Quote. To the extent applicable, DebtBook will also charge Customer an ImplementaVon Fee as set forth in the DebtBook Quote for the Premium ImplementaVon Services. Other Terms. Unless otherwise provided in the Customer Terms, this Amendment will become effective on the day immediately following the end of the current Term established in the Existing Order Form (the “Amendment Effective Date”). Except as expressly provided in this Amendment, the terms and provisions of the Agreement will remain unchanged and in full force and effect. Authority; ExecuGon. Each of the undersigned represents that they are authorized to (1) execute and deliver this Amendment on behalf of their respecVve party and (2) bind their respecVve party to the terms of the Agreement, and (3) suﬃcient funds have been appropriated and are available to pay any Fees due under the Agreement in Customer’s current ﬁscal year. FIFTH ASSET, INC., D/B/A DEBTBOOK By: Name: Title:

ORANGE, CA
By: Name: Title: NoGce Address PO Box 667950 Charloae, NC 28266 AaenVon: Chief OperaVng Oﬃcer [email protected] Date Signed: Purchase Order Required: Yes ____ No ____

95 December 2023 Form
Exhibit A DebtBook Quote [See attached.]
96 DebtBook Quote
1/4/2024
Orange, CA
300 E. Chapman Ave.

Orange, CA 92866
Prepared For:

Trang Nguyen | Finance Director
[email protected]
714-744-2235
Prepared By:

Tyler Hunt
Customer Success Manager
[email protected]
Notice Address:

PO Box 667950
Charlotte, NC 28266
The Renewal Term under this Renewal Order Form is 3 year(s). The Application Services purchased under this Renewal Order Form include the Products listed below. The Services include the Application Services, the Onboarding Services, the Support Services, and, if applicable for any Product, the Implementation Services option indicated below.

Products
Description
2023 Tier 3 - Debt - [23DST3-2]
DebtBook's debt management software-as-a-service application provided, if applicable, to Customer through access to the Application Services. 2023 Tier 3 - Lease - [23LST3-2]
DebtBook's Lease management software-as-a-service application provided, if applicable, to Customer through access to the Application Services. 2023 Tier 3 - Subscriptions - [23SST3-2]
DebtBook's Subscriptions management software-as-a-service application provided, if applicable, to Customer through access to the Application Services.

Product Bundle Total
Year 1
-
-
-
$13,000
Year 2
-
-
-
$14,500
Year 3
-
-
-
$16,000
Implementation Services Price
2023 Tier 3 Debt Premium Implementation - [23DPI3-2]
[FOR PREMIUM ONL Y] The additional implementation services provided to Customer on a semiannual basis, including tailored implementation support, review of Application Obligations, and entry of relevant Customer Data. $0
Total Contract Value $43,500
1 97

Exhibit B Customer Terms
The additional terms set forth below constitute “Customer Terms” for all purposes of the Agreement, apply to the Products and Services purchased under this Order Form, and modify any conflicting provision in the Agreement. 98 December 2023 Form
Exhibit C DEBTBOOK’S GENERAL TERMS & CONDITIONS Please carefully read these General Terms and Conditions (these “Terms & Conditions”) which govern Customer’s access and use of the Services described in the Order Form. By executing the Order Form and using any of the Services, Customer agrees to be bound by these Terms. 1. Definitions. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by DebtBook in an aggregate and anonymized manner, including statistical and performance information related to the Services. “Agreement” means, collectively and to the extent applicable, the Order Form, any Customer Terms, these Terms & Conditions, and the Incorporated Documents, in each case as may be amended from time to time in accordance with their terms. “Application Obligations” means, collectively, each contractual or financial obligation or agreement managed by Customer using the Products made available to Customer through the Application Services. “Application Services” means the Products and other application-based services that DebtBook offers to Customer through access to the DebtBook application. The specific Products offered to Customer as part of the Application Services are limited to those Products expressly described in any Order Form then in effect. “Appropriate Security Measures” means, collectively, commercially reasonable technical and physical controls and safeguards intended to protect Customer Data against destruction, loss, unauthorized disclosure, or unauthorized access by employees or contractors employed by DebtBook. “Authorized User” means any of Customer’s employees, consultants, contractors, or agents who are authorized by Customer to access and use any of the Services. “Customer” means the person or entity purchasing the Services as identified in the Order Form. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is transmitted by or on behalf of Customer or an Authorized User through the Services. “Customer Terms” means the terms set forth in or otherwise identified and incorporated into the Order Form. For the avoidance of doubt, “Customer Terms” does not include any purchase order or similar document generated by Customer unless such document is expressly identified and incorporated into the Order Form. “DebtBook” means Fifth Asset, Inc., d/b/a DebtBook, a Delaware corporation, and its permitted successor and assigns. “DebtBook IP” means (1) the Products, Services, Documentation, and Feedback, including all ideas, concepts, discoveries, strategies, analyses, research, developments, improvements, data, materials, products, documents, works of authorship, processes, procedures, designs, techniques, inventions, and other intellectual property, whether or not patentable or copyrightable, and all embodiments and derivative works of each of the foregoing in any form and media, that are developed, generated or produced by DebtBook arising from or related to the Product, Services, Documentation, or Feedback; and (2) any intellectual property provided to Customer or any Authorized User in connection with the foregoing other than Customer Data. “DebtBook Quote” means any pricing document identified and incorporated into each Order Form that may establish the Products, Services, Term, payment terms, and other relevant details applicable to each Customer purchase of Products and Services under such Order Form. “Documentation” means DebtBook’s end user documentation and content, regardless of media, relating to the Products or Services made available from time to time on DebtBook’s website at https://support.debtbook.com. “Feedback” means any comments, questions, suggestions, or similar feedback transmitted in any manner to DebtBook, including suggestions relating to features, functionality, or changes to the DebtBook IP. “Guided Implementation Services” means DebtBook’s standard Implementation Services option, including basic implementation support, guidance, and training. “Governing State” means, if Customer is a Government Entity, the state in which Customer is located. If Customer is not a Government Entity, “Governing State” means the State of North Carolina. “Government Entity” means any unit of state or local government, including states, counties, cities, towns, villages, school districts, special purpose districts, and any other political or governmental subdivisions and municipal corporations, and any agency, authority, board, or instrumentality of any of the foregoing. 99 December 2023 Form
“Implementation Services” means DebtBook’s Guided Implementation Services or its Premium Implementation Services, in each case as requested by Customer and as provided to Customer on an annual basis. “Incorporated Documents” means, collectively, the Privacy Policy, the SLA, and the Usage Policy, as each may be updated from time to time in accordance with their terms. The Incorporated Documents, as amended, are incorporated into these Terms & Conditions by this reference. Current versions of the Incorporated Documents are available at https://www.debtbook.com/legal. “Initial Term” means the Initial Term established in the Order Form. “Onboarding Services” means onboarding services, support, and training as required to make the Application Services available to Customer during the Initial Term. “Order Form” means each order document (including, if applicable, any DebtBook Quote incorporated therein by reference) duly authorized by Customer and DebtBook for the purchase of any Products or Services in effect from time to time, as each such Order Form may be amended, modified, or replaced in accordance with its terms and these Terms & Conditions. “Premium Implementation Services” means DebtBook’s premium Implementation Services option, including implementation support, guidance, and training, review of Application Obligations, and entry of relevant Customer Data. “Pricing Tier” means, if applicable, Customer’s pricing tier for each Product as of the date of determination. “Privacy Policy” means, collectively, DebtBook’s privacy policy and any similar data policies generally applicable to all users of the Application Services, in each case as posted to DebtBook’s website and as updated from time to time in accordance with their terms. “Products” means, collectively, any products DebtBook may offer to Customer from time to time through the Application Services, in each case as established in any Order Form then in effect. “Renewal Term” means any renewal term established in accordance with the terms of the Agreement. “Services” means, collectively, the Application Services, the Onboarding Services, the Implementation Services, and the Support Services. For the avoidance of doubt, “Services” includes the underlying Products made available to Customer through access to the Application Services. “SLA” means the Service Level Addendum generally applicable to all users of the Application Services, as posted to DebtBook’s website and as updated from time to time in accordance with its terms. “Support Services” means the general maintenance services and technical support provided in connection with the Application, as more particularly described in the SLA. “Term” means, collectively, the Initial Term and, if applicable, each successive Renewal Term. “Usage Policy” means, collectively, DebtBook’s acceptable usage policy, any end user licensing agreement, or any similar policy generally applicable to all end users accessing the Application Services, in each case as posted to DebtBook’s website and as updated from time to time in accordance with its terms. Each capitalized term used but not otherwise defined in these Terms & Conditions has the meaning given to such term in the applicable Order Form. 2. Access and Use. (a) Provision of Access. Subject to the terms and conditions of the Agreement, DebtBook grants Customer and Customer’s Authorized Users a non-exclusive, non-transferable (except as permitted by these Terms) right to access and use the Application Services during the Term, solely for Customer’s internal use and for the Authorized Users’ use in accordance with the Agreement. DebtBook will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application Services. (b) Documentation License. Subject to the terms and conditions of the Agreement, DebtBook grants to Customer and Customer’s Authorized Users a non-exclusive, non-sublicensable, non-transferable (except as permitted by these Terms) license to use the Documentation during the Term solely for Customer’s and its Authorized User’s internal business purposes in connection with its use of the Services. (c) Customer Responsibilities. Customer is responsible and liable for its Authorized Users’ access and use of the Services and Documentation, regardless of whether such use is permitted by the Agreement. Customer must use reasonable efforts to make all Authorized Users aware of the provisions applicable to their use of the Services, including the Incorporated Documents. 100
December 2023 Form
(d) Use Restrictions. Customer may not at any time, directly or indirectly through any Authorized User, access or use the Services in violation of the Usage Policies, including any attempt to (1) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (2) sell, license, or otherwise transfer or make available the Services or Documentation except as expressly permitted by the Agreement; or (3) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part. Customer will not knowingly transmit any personally identifiable information to DebtBook or any other third-party through the Services. (e) Suspension. Notwithstanding anything to the contrary in the Agreement, DebtBook may temporarily suspend Customer’s and any Authorized User’s access to any or all of the Services if: (1) Customer is more than 45 days late in making any payment due under, and in accordance with, the terms of the Agreement, (2) DebtBook reasonably determines that (A) there is a threat or attack on any of the DebtBook IP; (B) Customer’s or any Authorized User’s use of the DebtBook IP disrupts or poses a security risk to the DebtBook IP or to any other customer or vendor of DebtBook; (C) Customer, or any Authorized User, is using the DebtBook IP for fraudulent or other illegal activities; or (D) DebtBook’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (3) any vendor of DebtBook has suspended or terminated DebtBook’s access to or use of any third-party services or products required to enable Customer to access the Services (any such suspension, a “Service Suspension”). DebtBook will use commercially reasonable efforts to (i) provide written notice of any Service Suspension to Customer, (ii) provide updates regarding resumption of access to the Services, and (iii) resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. DebtBook is not liable for any damage, losses, or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. (f) Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, DebtBook may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between DebtBook and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by DebtBook. DebtBook may compile Aggregated Statistics based on Customer Data input into the Services. DebtBook may (1) make Aggregated Statistics publicly available in compliance with applicable law, and (2) use Aggregated Statistics as permitted under applicable law so long as, in each case, DebtBook’s use of any Aggregated Statistics does not identify Customer or disclose Customer’s Confidential Information. 3. Services and Support. (a) Services Generally. Subject to the terms of the Agreement, DebtBook will grant Customer access to the Application Services during the Initial Term and, if applicable, each subsequent Renewal Term. As part of the onboarding process, DebtBook will provide Customer with the Onboarding Services and the level of Implementation Services indicated in the Order Form. DebtBook will provide Customer with the Support Services throughout the Term. (b) Implementation Services. DebtBook will provide Implementation Services for each Product to the extent indicated for such Product in the applicable Order Form. Unless DebtBook has agreed to provide Premium Implementation Services for any such Product in accordance with this subsection, DebtBook will provide Customer with Guided Implementation Services for such Product at no additional charge. At Customer’s request, DebtBook will identify in an Order Form those Products for which DebtBook will provide Premium Implementation Services. For each Product indicated for Premium Implementation Services, DebtBook will charge Customer a one-time Fee for the Premium Implementation Services as set forth in such Order Form. Customer agrees to cooperate in good faith and to respond in a timely manner to any reasonable request for data or information DebtBook may require to complete the Implementation Services. DebtBook is not obligated to provide any Implementation Services after the date that is 180 days after the Effective Date of the Order Form pursuant to which DebtBook is providing such Implementation Services. (c) Service Levels and Support. Subject to the terms and conditions of the Agreement, DebtBook will make the Application Services and Support Services available in accordance with the SLA. 4. Fees and Payment. (a) Fees. Customer will pay DebtBook the fees set forth in each Order Form (the “Fees”). DebtBook will invoice Customer for all Fees in accordance with the invoicing schedule and requirements set forth in each Order Form. Customer must pay all Fees in US dollars within 30 days of its receipt of a valid invoice unless other payment terms are set forth in the Customer Terms. If Customer is a Government Entity, then Customer’s obligation to pay any Fees under the Agreement is subject in all respects to the requirements and limitations of the Governing State’s prompt payment act, as amended. Except as expressly provided in the Agreement, DebtBook does not provide refunds of any paid Fees. Unless otherwise provided in the Customer Terms, and to the extent permitted by applicable law, if Customer fails to make any payment when due, DebtBook may, without limiting any of its other rights, charge interest on the past due amount at the lowest of (1) the rate of 1.5% per month, (2) the rate established in any Customer Term, or (3) the maximum rate permitted under applicable law. (b) Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Unless Customer is exempt from making any such payment under applicable law or regulation, Customer is 101
December 2023 Form
responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer under the Agreement, other than any taxes imposed on DebtBook’s income. 5. Confidential Information. (a) From time to time during the Term, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”) information about the Disclosing Party’s business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether in written, electronic, or other form or media, that is marked, designated, or otherwise identified as “confidential”, or which a reasonable person would understand to be confidential or proprietary under the circumstances (collectively, “Confidential Information”). For the avoidance of doubt, DebtBook’s Confidential information includes the DebtBook IP and the Application Services source code and specifications. As used in the Agreement, “Confidential Information” expressly excludes any information that, at the time of disclosure is (1) in the public domain; (2) known to the receiving party at the time of disclosure; (3) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (4) independently developed by the Receiving Party. (b) To the extent permitted by applicable law, the Receiving Party will hold the Disclosing Party’s Confidential Information in strict confidence and may not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees, officers, directors, agents, subcontractors, financial advisors, and attorneys who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations under the Agreement or otherwise in connection with the Services. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order must first give written notice to the other party; or (2) to establish a party’s rights under the Agreement, including to make required court filings. (c) On the expiration or termination of the Agreement, the Receiving Party must promptly return to the Disclosing Party all copies of the Disclosing Party’s Confidential Information, or destroy all such copies and, on the Disclosing Party’s request, certify in writing to the Disclosing Party that such Confidential Information has been destroyed. (d) Each party’s obligations under this Section are effective as of the Effective Date and will expire three years from the termination of the Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. (e) Notwithstanding anything in this Section to the contrary, if Customer is a Government Entity, then DebtBook expressly agrees and understands that Customer’s obligations under this Section are subject in all respects to, and only enforceable to the extent permitted by, the public records laws, policies, and regulations of the Governing State. 6. Intellectual Property. (a) DebtBook IP. As between Customer and DebtBook, DebtBook owns all right, title, and interest, including all intellectual property rights, in and to the DebtBook IP. (b) Customer Data. As between Customer and DebtBook, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to DebtBook a non-exclusive, royalty-free, worldwide license to reproduce, distribute, sublicense, modify, prepare derivative works based on, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary or appropriate for DebtBook to provide the Services to Customer. (c) Effect of Termination. Without limiting either party’s obligations under Section 5 of the Agreement, DebtBook, at no further charge to Customer, will (1) provide Customer with temporary access to the Application Services for up to 60 days after the termination of the Agreement to permit Customer to retrieve its Customer Data in a commercially transferrable format and (2) use commercially reasonable efforts to assist Customer, at Customer’s request, with such retrieval. After such period, DebtBook may destroy any Customer Data in accordance with DebtBook’s data retention policies. 7. Limited Warranties. (a) Functionality & Service Levels. During the Term, the Application Services will operate in a manner consistent with general industry standards reasonably applicable to the provision of the Application Services and will conform in all material respects to the Documentation and service levels set forth in the SLA when accessed and used in accordance with the Documentation. Except as expressly stated in the SLA, DebtBook does not make any representation, warranty, or guarantee 102
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regarding availability of the Application Services, and the remedies set forth in the SLA are Customer’s sole remedies and DebtBook’s sole liability under the limited warranty set forth in this paragraph. (b) Security. DebtBook has implemented Appropriate Security Measures and has made commercially reasonable efforts to ensure its licensors and hosting providers, as the case may be, have implemented Appropriate Security Measures intended to protect Customer Data. (c) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, DEBTBOOK IP IS PROVIDED “AS IS,” AND DEBTBOOK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DEBTBOOK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION, DEBTBOOK MAKES NO WARRANTY OF ANY KIND THAT THE DEBTBOOK IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. (d) DebtBook exercises no control over the flow of information to or from the Application Service, DebtBook’s network, or other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt connections to the Internet. Although DebtBook will use commercially reasonable efforts to take all actions DebtBook deems appropriate to remedy and avoid such events, DebtBook cannot guarantee that such events will not occur. ACCORDINGLY, DEBTBOOK DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATING TO ALL SUCH EVENTS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT, ANY OTHER ACTIONS OR INACTIONS CAUSED BY OR UNDER THE CONTROL OF A THIRD PARTY. 8. Indemnification. (a) DebtBook Indemnification. (i) DebtBook will indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Application Services, or any use of the Application Services in accordance with the Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies DebtBook in writing of the Third-Party Claim, reasonably cooperates with DebtBook in the defense of the Third-Party Claim, and allows DebtBook sole authority to control the defense and settlement of the Third-Party Claim. (ii) If such a claim is made or appears possible, Customer agrees to permit DebtBook, at DebtBook’s sole expense and discretion, to (A) modify or replace the DebtBook IP, or component or part of the DebtBook IP, to make it non-infringing, or (B) obtain the right for Customer to continue use. If DebtBook determines that neither alternative is reasonably available, DebtBook may terminate the Agreement in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, so long as, in each case, DebtBook promptly refunds or credits to Customer all amounts Customer paid with respect to the DebtBook IP that Customer cannot reasonably use as intended under the Agreement. (iii) DebtBook’s indemnification obligation under this Section will not apply to the extent that the alleged infringement arises from Customer’s use of the Application Services in combination with data, software, hardware, equipment, or technology not provided or authorized in writing by DebtBook or modifications to the Application Services not made by DebtBook. (b) Sole Remedy. SECTION 8(a) SETS FORTH CUSTOMER’S SOLE REMEDIES AND DEBTBOOK’S SOLE LIABILITY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT WILL DEBTBOOK’S LIABILITY UNDER SECTION 8(a) EXCEED $1,000,000. (c) Customer Indemnification. Customer will indemnify, hold harmless, and, at DebtBook’s option, defend DebtBook from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with the Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by the Agreement. DEBTBOOK EXPRESSLY AGREES THAT THIS PROVISION WILL NOT APPLY TO ANY CUSTOMER THAT IS A GOVERNMENT ENTITY TO THE EXTENT SUCH INDEMNIFICATION OBLIGATIONS ARE PROHIBITED UNDER APPLICABLE LAW. 103
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9. Limitations of Liability. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL THE AGGREGATE LIABILITY OF DEBTBOOK ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DEBTBOOK UNDER THE AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION DO NOT APPLY TO CLAIMS PURSUANT TO SECTION 8. 10. Term and Termination. (a) Term. Except as the parties may otherwise agree in the Customer Terms, or unless terminated earlier in accordance with the Agreement: (i) the Agreement will automatically renew for successive 12-month Renewal Terms unless either party gives the other party written notice of non-renewal at least 30 days before the expiration of the then-current term; and (ii) each Renewal Term will be subject to the same terms and conditions established under the Agreement, with any Fees determined in accordance with DebtBook’s then-current pricing schedule, as provided to Customer at least 60 days before the expiration of the then-current term. (b) Termination. In addition to any other express termination right set forth in the Customer Terms: (i) DebtBook may terminate the Agreement immediately if Customer breaches any of its obligations under Section 2 or Section 5; (ii) Customer may terminate the Agreement in accordance with the SLA; (iii) either party may terminate the Agreement, effective on written notice to the other party, if the other party materially breaches the Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; (iv) if Customer is a Government Entity and sufficient funds are not appropriated to pay for the Application Services, then Customer may terminate the Agreement at any time without penalty following 30 days prior written notice to DebtBook; or (v) either party may, to the extent permitted by law, terminate the Agreement, effective immediately on written notice to the other party, if the other party becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law. (c) Survival. Only this Section and Section 1 (Definitions), Sections 4 through 6 (Fees; Confidential Information; Intellectual Property), Section 7(c) (Disclaimer of Warranties), and Sections 8, 9 and 12 (Indemnification; Limitations of Liability; Miscellaneous) will survive any termination or expiration of the Agreement. 11. Independent Contractor. The parties to the Agreement are independent contractors. The Agreement does not create a joint venture or partnership between the parties, and neither party is, by virtue of the Agreement, authorized as an agent, employee, or representative of the other party. 12. Miscellaneous. (a) Governing Law; Submission to Jurisdiction. The Agreement will be governed by and construed in accordance with the laws of the Governing State, without regard to any choice or conflict of law provisions, and any claim arising out of the Agreement may be brought in the state or federal courts located in the Governing State. Each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding, (b) Entire Agreement; Order of Precedence. The Order Form, the Customer Terms, the Terms & Conditions, and the Incorporated Documents constitute the complete Agreement between the parties and supersede any prior discussion or representations regarding Customer’s purchase and use of the Services. To the extent any conflict exists between the terms of the Agreement, the documents will govern in the following order or precedence: (1) the Customer Terms, (2) Order Form, (3) the Terms & Conditions, and (4) the Incorporated Documents. No other 104
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purchasing order or similar instrument issued by either party in connection with the Services will have any effect on the Agreement or bind the other party in any way. (c) Amendment; Waiver. No amendment to the Order Form, the Terms & Conditions, or the Customer Terms will be effective unless it is in writing and signed by an authorized representative of each party. DebtBook may update the Incorporated Documents from time-to-time following notice to Customer so long as such updates are generally applicable to all users of the Services. No waiver by any party of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, delay in exercising, or any partial exercise of any rights, remedy, power, or privilege arising from the Agreement will in any way waive or otherwise limit the future exercise of any right, remedy, power, or privilege available under the Agreement. (d) Notices. All notices, requests, consents, claims, demands, and waivers under the Agreement (each, a “Notice”) must be in writing and addressed to the recipients and addresses set forth for each party on the Order Form (or to such other address as DebtBook or Customer may designate from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). (e) Force Majeure. In no event will either party be liable to the other party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including acts of God, flood, fire, earthquake, pandemic, epidemic, problems with the Internet, shortages in materials, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. (f) Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. (g) Assignment. Either party may assign its rights or delegate its obligations, in whole or in part, on 30 days prior written notice to the other party, to an affiliate or an entity that acquires all or substantially all of the business or assets of such party, whether by merger, reorganization, acquisition, sale, or otherwise. Except as stated in this paragraph, neither party may assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld, conditioned, or delayed. The Agreement is binding on and inures to the benefit of the parties and their permitted successors and assigns. (h) Marketing. Neither party may issue press releases related to the Agreement without the other party’s prior written consent. Unless otherwise provided in the Customer Terms, either party may include the name and logo of the other party in lists of customers or vendors. (i) State-Specific Certifications & Agreements. If Customer is a Government Entity and to the extent required under the laws of the Governing State, DebtBook hereby certifies and agrees as follows: (i) DebtBook has not been designated by any applicable government authority or body as a company engaged in the boycott of Israel under the laws of the Governing State; (ii) DebtBook is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in the Agreement by any governmental department or agency of the Governing State; (iii) DebtBook will not discriminate against any employee or applicant for employment because of race, ethnicity, gender, gender identity, sexual orientation, age, religion, national origin, disability, color, ancestry, citizenship, genetic information, political affiliation or military/veteran status, or any other status protected by federal, state, or local law; (iv) DebtBook will verify the work authorization of its employees using the federal E-Verify program and standards as promulgated and operated by the United States Department of Homeland Security and, if applicable, will require its subcontractors to do the same; and (v) Nothing in the Agreement is intended to act as a waiver of immunities that Customer has as a matter of law as a Government Entity under the laws of the Governing State, including but not limited to sovereign or governmental immunity, public officers or official immunity or qualified immunity, to the extent Customer is entitled to such immunities. 105
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(j) Execution. Any document executed and delivered in connection with the Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic signatures may be used for the purpose of executing the Order Form by email or other electronic means. Any document delivered electronically and accepted is deemed to be “in writing” to the same extent and with the same effect as if the document had been signed manually. 106
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Appendix I Existing Order Form(s) [See aaached.]
107

ORDER FORM
Fifth Asset, Inc., d/ b/ a DebtBook(" DebtBook") is pleased to provide City of Orange, CA(" Customer") with the Services subject to the terms established in this Order Form, including DebtBook' s Price Quote attached as Exhibit A and incorporated herein by this reference( the " DebtBook Quote"). This Order Form may be modified or replaced from time to time by a subsequent Order Form duly executed and delivered by each party in connection with any Renewal Term.

The Services are subject to DebtBook' s General Terms & Conditions, which have been provided to Customer the ` Terris & Conditions"), and the Incorporated Documents referenced in the Terms & Conditions. Each capitalized term used but not defined in this Order Form has the meaning given in the Terms& Conditions.

Effective Date: 12/ 15/ 2022 Billing Frequency: Annually Initial Term End Date: 12/ 14/ 2023 Payment Terms: Net 30 Initial Pricing Tier: 2 See the DebtBook Quote for more details Services. Subject to the terms described in this Order Form, DebtBook will grant Customer access to the Application Services during the Initial Term described above and, if applicable, each subsequent Renewal Term.

As part of the onboarding process, DebtBook will provide Customer with the Onboarding Services and, if requested, the Implementation Services. DebtBook will also provide Customer with the Support Services throughout the Term.

Fees. DebtBook will charge Customer( 1) a recurring Subscription Feefor Customer' s access to the Onboarding Services, the Application Services, and the Support Services and ( 2) if applicable, an Implementation Fee for the Implementation Services, in each case as set forth in the DebtBook Quote and this Order Form.

Generally, DebtBook sets Fees using its standard pricing schedule for the Services based on the Customer' s applicable Pricing Tier, which is based on the total number and amount of the Customer' s Application Obligations at the time of determination. DebtBook' s current pricing schedule and Pricing Tiers are set forth in the DebtBook Quote, which will remain in effect with respect to Customer throughout the Initial Term.

The Initial Pricing Tier indicated above is based on Customer' s good faith estimate of its Application Obligations as of the Effective Date. The Subscription Fees to be charged as provided in the DebtBook Quote will not change during the Initial Term, regardless of any change to the actual number or amount of the Customer' s Application Obligations during the Initial Term.

Implementation Services. At Customer' s request, DebtBook will provide Implementation Services to Customer for a 12- month period, with each such period beginning, if applicable, on the Effective Date and on each anniversary of the Effective Date thereafter ( each, an " Implementation Period"). Customer may request Implementation Services at any time during the Term.

If Implementation Services are requested for any Implementation Period, then the Implementation Fee will be based on the aggregate number and amount of the Customer' s Application Obligations at the beginning of such Implementation Period. The Implementation Fee will be due and payable at the later of( 1) the beginning of the applicable Implementation Period or( 2) the date on which Customer requests Implementation Services for such Implementation Period, and will entitle Customer, in each case, to Implementation Services at the applicable Pricing Tier through the end of the Implementation Period then in effect.

For any Implementation Period, if the total number or amount of Customer' s Application Obligations implemented causes Customer' s applicable Pricing Tier to increase, then DebtBook will charge Customer an additional Implementation Fee such that the total Implementation Fee charged for such Implementation Period equals the Implementation Fee applicable to the increased Pricing Tier as set forth in the DebtBook Quote.

Billing. Unless otherwise provided in the Order Form or the Customer Terms, all Fees will be due and payable in advance on the terms indicated above, and each invoice will be emailed to the Customer' s billing contact indicated below.

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Renewal Term. The Agreement is subject to renewal on the terms set forth in the Terms & Conditions. The Pricing Tier applicable for each Renewal Term will be determined based on the aggregate number and amount of the Customer' s Application Obligations at the time of renewal.

Termination. The Agreement is subject to early termination on the terms set forth in the Terms& Conditions.

Entire Agreement. By executing this Order Form, each party agrees to be bound by this Order Form, the Terms Conditions, the Incorporated Documents, and any Customer Terms.

This Order Form, the Customer Terms, the Terms& Conditions, and the Incorporated Documents constitute the complete " Agreement" between the parties and supersede any prior discussion or representations regarding the Customer' s purchase and use of the Services.

Intellectual Property. Except for the limited rights and licenses expressly granted to Customer under this Order Form and the Terms & Conditions, nothing in the Agreement grants to Customer or any third party any intellectual property rights or other right, title, or interest in or to the DebtBook IP.

Important Disclaimers & Limitations. EXCEPT FOR THE WARRANTIES SET FORTH IN THE TERMS & CONDITIONS, DEBTBOOK IP IS PROVIDED " AS IS," AND DEBTBOOK DISCLAIMS ALL WARRANTIES, WHETHER

EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF

MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IN ADDITION, TO THE

EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES' LIABILITIES UNDER THE AGREEMENT ARE LIMITED AS SET FORTH IN THE TERMS& CONDITIONS.

Notices. Any Notice delivered under the Agreement will be delivered to the address below each party' s signature below.

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Authority: Execution. Each of the undersigned represents that they are authorized to ( 1) execute and deliver this Order Form on behalf of their respective party and ( 2) bind their respective party to the terms of the Agreement. This Order Form and any other documents executed and delivered in connection with the Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic signatures may be used for the purpose of executing the Order Form by email or other electronic means. Any document delivered electronically and accepted is deemed to be " in writing" to the same extent and with the same effect as if the document had been signed manually.

FIFTH ASSET, INC., D/ B/ A DEBTBOOK CITY OF ORANGE, CA
By: Y--A N/\" By: L- A— b,--
Name: Tyler Traudt Name: SNsov\ a\ vah
Title: CEO Title: Rss.‘ Skar\# C:
t41 (`
Aane` r
Notice Address Notice Address
300 W. Summit Avenue, Suite 110 300 E. Chapman Ave.

Charlotte, NC 28203 Orange, CA 92866
Attention: Chief Executive Officer Attention:
tyler. traudt@debtbook. com
Billing Contact

SAME AS ABOVE
APPROVED AS TO FORM:

AAMA: Ati J
Bi nniE.

Senior Assist nt City Attorney
September 2022 Form
110
Exhibit A
DebtBook Quote
See attached.]
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DebtBook
Orange, CA
Orange, CA Quote created: November 15, 2022
300 E. Chapman Ave. Quote expires: December 30, 2022
Orange, CA 92866 Quote created by: Bill Fray
US Regional Sales Director
bill. fray@debtbook. com
Elsa Chow
echow@cityoforange. org
7147442250
Katrin Bandhauer
kbandhauer@cityoforange. org
714) 744- 2251
Comments from Bill Fray
Please note this quote is for Tier 2 pricing which includes up to 75 combined debt, lease, and SBITA obligations. This quote is for guided implementation of all GASB 87 leases, however we acknowledge the desire to receive white- glove implementation for all GASB 96 SBITAs. Guided implementation will be free of charge for the first year contract. Going forward, Tier 2 white- glove implementation is provided at a cost of$ 2,000.

We are also pleased to offer a 10% discount on the first year contract via referral from LSL Products& Services
Item& Description SKU Quantity Unit Total
Price
22 Guided Implementation Fee Tier 2 22G12- 1 0. 00 $ 0. 00 There is no Implementation Fee charged for Guided Implementation. 3 for 1 year 22 Subscription Fee Tier 2 225T2- 1 $ 9, 750. 00 $ 8, 775. 00 This represents the annual subscription fee your organization pays for the Application Services, 3 year / year Onboarding Services, and Support Services. This includes unlimited users and external sharing. aster 10' discount
torlyAar
Total 8, 775. 00
112
2022 Pricing Tiers
The below tiers represent DebtBook' s 2022 Pricing Tiers.

DEBT, LEASE& SBITA AGREEMENTS White Glove Guided
TIER (# AND$) ANNUAL Implementation Implementation 1 Up to 15 and$ 50 million 6, 500 0 0
2 Up to 75 or$ 200 million 9, 750 2, 000 0
3 Up to 150 or$ 1 billion 15, 000 3, 000 S0
4 Up to 225 or$ 2 billion 25, 000 4, 000 0
5 Up to 300 or$ 5 billion 40, 000 5, 000 0
6 Up to 400 or$ 7 billion 55, 000 6, 000 0
7 Up to 600 or$ 8. 5 billion 65, 000 8, 000 0
8 Up to 800 or$ 10 billion 75, 000 10, 000 0
Questions? Contact me
e
Bill Fray
Regional Sales Director
bill. fray@debtbook. com
113
DEBTBOOK' S GENERAL TERMS& CONDI11ONS
Please carefully read these General Terms and Conditions ( these " Terms & Conditions") which govern the Customer' s access and use of the Services described in the Order Form.

By executing the Order Form and using any of the Services, the Customer agrees to be bound by these Terms.

1. Definitions.

Aggregated Statistics" means data and information related to Customer' s use of the Services that is used by DebtBook in an aggregate and anonymized manner, including statistical and performance information related to the Services.

Agreement" means, collectively and to the extent applicable, the Order Form, any Customer Terms, these Terms & Conditions, and the Incorporated Documents, in each case as may be amended from time to time in accordance with their terms.

Application Obligations" means, collectively, Customer' s debt, lease, and other financial obligations relevant to the Application Services.

Application Services" means DebtBook' s debt, lease, and financial obligation management and compliance software- as- a- service application.

Appropriate Security Measures" means, collectively, commercially reasonable technical and physical controls and safeguards intended to protect Customer Data against destruction, loss, unauthorized disclosure, or unauthorized access by employees or contractors employed by DebtBook.

Authorized User" means any of Customer' s employees, consultants, contractors, or agents who are authorized by Customer to access and use any of the Services.

Customer" means the person or entity purchasing the Services as identified in the Order Form.

Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is transmitted by or on behalf of Customer or an Authorized User through the Services.

Customer Terms" means any terms or agreements provided by Customer and applicable to the Services but only to the extent such terms or agreements are expressly referenced and incorporated into the Order Form. For the avoidance of doubt, " Customer Terms" does not include any purchase order or similar document generated by Customer unless such document is expressly referenced and incorporated into the Order Form.

DebtBook" means Fifth Asset, Inc., d/ b/ a DebtBook, a Delaware corporation, and its permitted successor and assigns.

DebtBook IP" means ( 1) the Services, Documentation, and Feedback, including all ideas, concepts, discoveries, strategies, analyses, research, developments, improvements, data, materials, products, documents, works of authorship, processes, procedures, designs, techniques, inventions, and other intellectual property, whether or not patentable or copyrightable, and all embodiments and derivative works of each of the foregoing in any form and media, that are developed, generated or produced by DebtBook arising from or related to the Services, Documentation, or Feedback; and( 2) any intellectual property provided to Customer or any Authorized User in connection with the foregoing other than Customer Data.

Documentation" means DebtBook' s end user documentation and content, regardless of media, relating to the Services made available from time to time on DebtBook' s website at https:// support. debtbook. com.

Feedback" means any comments, questions, suggestions, or similar feedback transmitted in any manner to DebtBook, including suggestions relating to features, functionality, or changes to the DebtBook IP.

Governing State" means, if Customer is a Government Entity, the state in which Customer is located.

If Customer is not a Government Entity, "Governing State" means the State of North Carolina.

Government Entity" means any unit of state or local government, including states, counties, cities, towns, villages, school districts, special purpose districts, and any other political or governmental subdivisions and municipal corporations, and any agency, authority, board, or instrumentality of any of the foregoing.

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Implementation Services" means, if requested by Customer, the additional implementation services provided to Customer on an annual basis, including tailored implementation support, review of Application Obligations, and entry of relevant Customer Data.

Incorporated Documents" means, collectively, the Privacy Policy, the SLA, and the Usage Policy, as each may be updated from time to time in accordance with their terms. The Incorporated Documents, as amended, are incorporated into these Terms & Conditions by this reference. Current versions of the Incorporated Documents are available at https:// www. debtbook. com/ legal.

Initial Term" means the Initial Term of the Services beginning on the Effective Date and ending on the Initial Term End Date, as established in the Order Form.

Onboarding Services" means onboarding services, support, and training as required to make the Application Services available to the Customer during the Initial Term.

Order Form" means( 1) the order document executed and delivered by DebtBook and Customer for the Initial Term or ( 2) to the extent applicable, any subsequent order document executed and delivered by DebtBook and Customer for any Renewal Term.

Pricing Tier" means the Customer' s applicable pricing tier, determined based on the number and amount of Application Obligations at the time of determination, as set forth in the schedule included as part of the Order Form.

Privacy Policy" means, collectively, DebtBook' s privacy policy and any similar data policies generally applicable to all users of the Application Services, in each case as posted to DebtBook' s website and as updated from time to time in accordance with their terms.

Renewal Term" means any renewal term established in accordance with the terms of the Agreement.

Services" means, collectively, the Application Services, the Onboarding Services, the Implementation Services, and the Support Services.

SLA" means the Service Level Addendum generally applicable to all users of the Application Services, as posted to DebtBook' s website and as updated from time to time in accordance with its terms.

Support Services" means the general maintenance services and technical support provided in connection with the Application, as more particularly described in the SLA.

Term" means, collectively, the Initial Term and, if applicable, each successive Renewal Term.

Usage Policy" means, collectively, DebtBook' s acceptable usage policy, any end user licensing agreement, or any similar policy generally applicable to all end users accessing the Application Services, in each case as posted to DebtBook' s website and as updated from time to time in accordance with its terms.

Each capitalized term used but not otherwise defined in these Terms & Conditions has the meaning given to such term in the applicable Order Form.

2. Access and Use.
a) Provision of Access. Subject to the terms and conditions of the Agreement, DebtBook grants Customer and Customer' s Authorized Users a non- exclusive, non- transferable ( except as permitted by these Terms) right to access and use the Application Services during the Term, solely for Customer' s internal use and for the Authorized Users' use in accordance with the Agreement. DebtBook will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application Services. b) Documentation License. Subject to the terms and conditions of the Agreement, DebtBook grants to Customer and Customer' s Authorized Users a non- exclusive, non- sublicensable, non- transferable except as permitted by these Terms) license to use the Documentation during the Term solely for Customer' s and its Authorized User' s internal business purposes in connection with its use of the Services. c) Customer Responsibilities. Customer is responsible and liable for its Authorized Users' access and use of the Services and Documentation, regardless of whether such use is permitted by the Agreement.

Customer must use reasonable efforts to make all Authorized Users aware of the provisions applicable to their use of the Services, including the Incorporated Documents.

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d) Use Restrictions. Customer may not at any time, directly or indirectly through any Authorized User, access or use the Services in violation of the Usage Policies, including any attempt to( 1) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; ( 2) sell, license, or otherwise transfer or make available the Services or Documentation except as expressly permitted by the Agreement; or 3) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part. Customer will not knowingly transmit any personally identifiable information to DebtBook or any other third- party through the Services. e) Suspension. Notwithstanding anything to the contrary in the Agreement, DebtBook may temporarily suspend Customer' s and any Authorized User' s access to any or all of the Services if:( 1) Customer is more than 45 days late in making any payment due under, and in accordance with, the terms of the Agreement,( 2) DebtBook reasonably determines that( A) there is a threat or attack on any of the DebtBook IP; B) Customer' s or any Authorized User' s use of the DebtBook IP disrupts or poses a security risk to the DebtBook IP or to any other customer or vendor of DebtBook;( C) Customer, or any Authorized User, is using the DebtBook IP for fraudulent or other illegal activities; or ( D) DebtBook' s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or( 3) any vendor of DebtBook has suspended or terminated DebtBook' s access to or use of any third- party services or products required to enable Customer to access the Services( any such suspension, a" Service Suspension"). DebtBook will use commercially reasonable efforts to i) provide written notice of any Service Suspension to Customer, ( ii) provide updates regarding resumption of access to the Services, and ( iii) resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. DebtBook is not liable for any damage, losses, or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. f) Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, DebtBook may monitor Customer' s use of the Services and collect and compile Aggregated Statistics. As between DebtBook and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by DebtBook. DebtBook may compile Aggregated Statistics based on Customer Data input into the Services. DebtBook may( 1) make Aggregated Statistics publicly available in compliance with applicable law, and ( 2) use Aggregated Statistics as permitted under applicable law so long as, in each case, DebtBook' s use of any Aggregated Statistics does not identify the Customer or disclose Customer' s Confidential Information.

3. Service Levels and Support. Subject to the terms and conditions of the Agreement, DebtBook will use commercially reasonable efforts to make the Application Services and Support Services available in accordance with the SLA.

4. Fees and Payment.
a) Fees. Customer will pay DebtBook the fees(" Fees") set forth in the Order Form. DebtBook will invoice Customer for all Fees in accordance with the invoicing schedule and requirements set forth in the Order Form. Customer must pay all Fees in US dollars, and all Fees are fully earned once paid. To the extent permitted by applicable law, if Customer fails to make any payment when due, DebtBook may, without limiting any of its other rights, charge interest on the past due amount at the lowest of( 1) the rate of 1. 5% per month, ( 2) the rate established in any Customer Term, or( 3) the maximum rate permitted under applicable law. b) Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Unless Customer is exempt from making any such payment under applicable law or regulation, Customer is responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer under the Agreement, other than any taxes imposed on DebtBook' s income.

5. Confidential Information.
a) From time to time during the Term, either party( the" Disclosing Party") may disclose or make available to the other party( the " Receiving Party") information about the Disclosing Party' s business affairs, products, confidential intellectual property, trade secrets, third- party confidential information, and other sensitive or proprietary information, whether in written, electronic, or other form or media, that is marked, designated, or otherwise identified as " confidential", or which a reasonable person would understand to be confidential or proprietary under the circumstances( collectively," Confidential Information"). For the avoidance September 2022 Form
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of doubt, DebtBook' s Confidential information includes the DebtBook IP and the Application Services source code and specifications. As used in the Agreement, " Confidential Information" expressly excludes any information that, at the time of disclosure is ( 1) in the public domain; ( 2) known to the receiving party at the time of disclosure;( 3) rightfully obtained by the Receiving Party on a non- confidential basis from a third party; or( 4) independently developed by the Receiving Party.
b) To the extent permitted by applicable law, the Receiving Party will hold the Disclosing Party' s Confidential Information in strict confidence and may not disclose the Disclosing Party' s Confidential Information to any person or entity, except to the Receiving Party' s employees, officers, directors, agents, subcontractors, financial advisors, and attorneys who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations under the Agreement or otherwise in connection with the Services. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required ( 1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order must first give written notice to the other party; or ( 2) to establish a party' s rights under the Agreement, including to make required court filings.
c) On the expiration or termination of the Agreement, the Receiving Party must promptly return to the Disclosing Party all copies of the Disclosing Party' s Confidential Information, or destroy all such copies and, on the Disclosing Party' s request, certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
d) Each party' s obligations under this Section are effective as of the Effective Date and will expire three years from the termination of the Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret ( as determined under applicable law), such obligations of non- disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. e) Notwithstanding anything in this Section to the contrary, if Customer is a Government Entity, then DebtBook expressly agrees and understands that Customer' s obligations under this Section are subject in all respects to, and only enforceable to the extent permitted by, the public records laws, policies, and regulations of the Governing State.

6. Intellectual Property.
a) DebtBook IP. As between Customer and DebtBook, DebtBook owns all right, title, and interest, including all intellectual property rights, in and to the DebtBook IP. b) Customer Data. As between Customer and DebtBook, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to DebtBook a non- exclusive, royalty- free, worldwide license to reproduce, distribute, sublicense, modify, prepare derivative works based on, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary or appropriate for DebtBook to provide the Services to Customer. c) Effect of Termination. Without limiting either party' s obligations under Section 5 of the Agreement, DebtBook, at no further charge to Customer, will ( 1) provide Customer with temporary access to the Application Services for up to 60 days after the termination of the Agreement to permit Customer to retrieve its Customer Data in a commercially transferrable format and( 2) use commercially reasonable efforts to assist Customer, at Customer' s request, with such retrieval. After such period, DebtBook may destroy any Customer Data in accordance with DebtBook' s data retention policies.

7. Limited Warranties.
a) Functionality & Service Levels. During the Term, the Application Services will operate in a manner consistent with general industry standards reasonably applicable to the provision of the Application Services and will conform in all material respects to the Documentation and service levels set forth in the SLA when accessed and used in accordance with the Documentation. Except as expressly stated in the SLA, DebtBook does not make any representation, warranty, or guarantee regarding availability of the Application Services, and the remedies set forth in the SLA are Customer' s sole remedies and DebtBook' s sole liability under the limited warranty set forth in this paragraph.

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b) Security. DebtBook has implemented Appropriate Security Measures and has made commercially reasonable efforts to ensure its licensors and hosting providers, as the case may be, have implemented Appropriate Security Measures intended to protect Customer Data. c) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, DEBTBOOK IP IS PROVIDED" AS IS," AND DEBTBOOK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DEBTBOOK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,

FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH

IN THIS SECTION, DEBTBOOK MAKES NO WARRANTY OF ANY KIND THAT THE DEBTBOOK IP, OR ANY

PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER' S OR ANY OTHER PERSON' S

REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR

WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
d) DebtBook exercises no control over the flow of information to or from the Application Service, DebtBook' s network, or other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt connections to the Internet. Although DebtBook will use commercially reasonable efforts to take all actions DebtBook deems appropriate to remedy and avoid such events, DebtBook cannot guarantee that such events will not occur. ACCORDINGLY, DEBTBOOK DISCLAIMS ANY AND ALL LIABILITY RESULTING

FROM OR RELATING TO ALL SUCH EVENTS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT, ANY OTHER ACTIONS OR INACTIONS CAUSED BY OR UNDER THE CONTROL OF A THIRD PARTY.

8. Indemnification.
a) DebtBook Indemnification.
i) DebtBook will indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs( including reasonable attorneys' fees)( collectively," Losses") incurred by Customer resulting from any third- party claim, suit, action, or proceeding (" Third- Party Claim") that the Application Services, or any use of the Application Services in accordance with the Agreement, infringes or misappropriates such third party' s US patents, copyrights, or trade secrets, provided that Customer promptly notifies DebtBook in writing of the Third- Party Claim, reasonably cooperates with DebtBook in the defense of the Third- Party Claim, and allows DebtBook sole authority to control the defense and settlement of the Third- Party Claim. ii) If such a claim is made or appears possible, Customer agrees to permit DebtBook, at DebtBook' s sole expense and discretion, to ( A) modify or replace the DebtBook IP, or component or part of the DebtBook IP, to make it non- infringing, or( B) obtain the right for Customer to continue use.

If DebtBook determines that neither alternative is reasonably available, DebtBook may terminate the Agreement in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, so long as, in each case, DebtBook promptly refunds or credits to Customer all amounts Customer paid with respect to the DebtBook IP that Customer cannot reasonably use as intended under the Agreement.
iii) DebtBook' s indemnification obligation under this Section will not apply to the extent that the alleged infringement arises from Customer' s use of the Application Services in combination with data, software, hardware, equipment, or technology not provided or authorized in writing by DebtBook or modifications to the Application Services not made by DebtBook. b) Sole Remedy. SECTION 8( a) SETS FORTH CUSTOMER' S SOLE REMEDIES AND DEBTBOOK' S

SOLE LIABILITY FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD PARTY' S INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT WILL DEBTBOOK' S LIABILITY UNDER SECTION 8( a) EXCEED$ 1, 000, 000. c) Customer Indemnification. To the extent permitted by applicable law, Customer will indemnify, hold harmless, and, at DebtBook' s option, defend DebtBook from and against any Losses resulting from any Third- Party Claim that the Customer Data, or any use of the Customer Data in accordance with the Agreement, infringes or misappropriates such third party' s intellectual property rights and any Third- Party September 2022 Form
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Claims based on Customer' s or any Authorized User' s negligence or willful misconduct or use of the Services in a manner not authorized by the Agreement.

9. Limitations of Liability. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT

WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR

EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT( INCLUDING NEGLIGENCE), STRICT LIABILITY,

AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR

PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS

EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL THE AGGREGATE LIABILITY OF

DEBTBOOK ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY,

INCLUDING BREACH OF CONTRACT, TORT ( INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DEBTBOOK UNDER THE AGREEMENT IN THE 12- MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION DO NOT APPLY TO CLAIMS PURSUANT TO SECTION 8.

10. Term and Termination.
a) Term. Except as the parties may otherwise agree in the Order Form, or unless terminated earlier in accordance with the Agreement:
i) the Initial Term of the Agreement will begin on the Effective Date and end on the Initial Term End Date;
ii) the Agreement will automatically renew for successive 12- month Renewal Terms unless either party gives the other party written notice of non- renewal at least 30 days before the expiration of the then- current term; and
iii) each Renewal Term will be subject to the same terms and conditions established under the Agreement, with any Fees determined in accordance with DebtBook' s then- current pricing schedule published on DebtBook' s website and generally appliable to all users of the Services, as provided to Customer at least 60 days before the expiration of the then- current term. b) Termination. In addition to any other express termination right set forth in the Agreement:
i) DebtBook may terminate the Agreement immediately if Customer breaches any of its obligations under Section 2 or Section 5;
ii) Customer may terminate the Agreement in accordance with the SLA; iii) either party may terminate the Agreement, effective on written notice to the other party, if the other party materially breaches the Agreement, and such breach:( A) is incapable of cure; or ( B) being capable of cure, remains uncured 30 days after the non- breaching party provides the breaching party with written notice of such breach;
iv) if( 1) Customer is a governmental entity and( 2) sufficient funds are not appropriated to pay for the Application Services, then Customer may terminate the Agreement at any time without penalty following 30 days prior written notice to DebtBook; or v) either party may, to the extent permitted by law, terminate the Agreement, effective immediately on written notice to the other party, if the other party becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law. c) Survival. Only this Section and Section 1( Definitions), Sections 4 through 6( Fees; Confidential Information; Intellectual Property), Section 7( c) ( Disclaimer of Warranties), and Sections 8, 9 and 12 Indemnification; Limitations of Liability; Miscellaneous) will survive any termination or expiration of the Agreement.

11. Independent Contractor. The parties to the Agreement are independent contractors. The Agreement does not create a joint venture or partnership between the parties, and neither party is, by virtue of the Agreement, authorized as an agent, employee, or representative of the other party.

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12. Miscellaneous.
a) Governing Law: Submission to Jurisdiction. The Agreement will be governed by and construed in accordance with the laws of the Governing State, without regard to any choice or conflict of law provisions, and any claim arising out of the Agreement may be brought in the state or federal courts located in the Governing State. Each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding,
b) Entire Agreement; Order of Precedence. The Order Form, any Customer Terms, the Terms& Conditions, and the Incorporated Documents constitute the complete Agreement between the parties and supersede any prior discussion or representations regarding the Customer' s purchase and use of the Services.

To the extent any conflict exists between the terms of the Agreement, the documents will govern in the following order or precedence:( 1) the Order Form( 2) the Customer Terms,( 3) the Terms& Conditions, and( 4) the Incorporated Documents. No other purchasing order or similar instrument issued by either party in connection with the Services will have any effect on the Agreement or bind the other party in any way. c) Amendment; Waiver. No amendment to the Order Form, the Terms & Conditions, or the Customer Terms will be effective unless it is in writing and signed by an authorized representative of each party. DebtBook may update the Incorporated Documents from time- to-time following notice to Customer so long as such updates are generally applicable to all users of the Services. No waiver by any party of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, delay in exercising, or any partial exercise of any rights, remedy, power, or privilege arising from the Agreement will in any way waive or otherwise limit the future exercise of any right, remedy, power, or privilege available under the Agreement. d) Notices. All notices, requests, consents, claims, demands, and waivers under the Agreement each, a" Notice") must be in writing and addressed to the recipients and addresses set forth for each party on the Order Form ( or to such other address as DebtBook or Customer may designate from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier( with all fees pre- paid), or email( with confirmation of transmission), or certified or registered mail( in each case, return receipt requested, postage pre- paid). e) Force Majeure. In no event will either party be liable to the other party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement( except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party' s reasonable control, including acts of God, flood, fire, earthquake, pandemic, epidemic, problems with the Internet, shortages in materials, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. f) Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. g) Assignment. Either party may assign its rights or delegate its obligations, in whole or in part, on 30 days prior written notice to the other party, to an affiliate or an entity that acquires all or substantially all of the business or assets of such party, whether by merger, reorganization, acquisition, sale, or otherwise.

Except as stated in this paragraph, neither party may assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld, conditioned, or delayed. The Agreement is binding on and inures to the benefit of the parties and their permitted successors and assigns.
h) Marketing. Neither party may issue press releases related to the Agreement without the other party' s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors.
i) State- Specific Certifications & Agreements. To the extent required under the laws of the Governing State, DebtBook hereby certifies and agrees as follows:
i) DebtBook has not been designated by any applicable government authority or body as a company engaged in the boycott of Israel under the laws of the Governing State; September 2022 Form
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ii) DebtBook is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in the Agreement by any governmental department or agency of the Governing State;
iii) DebtBook will not discriminate against any employee or applicant for employment because of race, ethnicity, gender, gender identity, sexual orientation, age, religion, national origin, disability, color, ancestry, citizenship, genetic information, political affiliation or military/ veteran status, or any other status protected by federal, state, or local law; and iv) DebtBook will verify the work authorization of its employees using the federal E-Verify program and standards as promulgated and operated by the United States Department of Homeland Security and, if applicable, will require its subcontractors to do the same.

Q) Execution. Any document executed and delivered in connection with the Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. To the extent permitted by applicable law, electronic signatures may be used for the purpose of executing the Order Form by email or other electronic means. Any document delivered electronically and accepted is deemed to be" in writing" to the same extent and with the same effect as if the document had been signed manually.

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Agenda Item
City Council
Item #: 3.5. 1/23/2024 File #: 23-0796
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director

1. SUBJECT
Lease Agreement between the City of Orange and Orange Children and Parents Together.

2. SUMMARY
This ten-year Lease Agreement, with two five-year extensions, between the City and Orange Children and Parents Together is for the use of the City facility at 392 South Hewes Street (El Modena Library) to operate a Head Start Preschool Program.

3. RECOMMENDED ACTION
Approve the ten-year Lease Agreement, with two five-year extensions, between the City and Orange Children and Parents Together; and authorize the Mayor and City Clerk to execute on behalf of the City.

4. FISCAL IMPACT
The Lease Agreement stipulates that Orange Children and Parents Together pays an annual rent of $16,000 for the first two years of the contract, which will go into revenue account 150.0000.44210.00000, OC Head Start Building Maintenance Fund. Under the Lease Agreement, there will be biannual increases of $1,000 over the subsequent ten years, for a total of $180,000 in revenue lease payments over that period.

5. STRATEGIC PLAN GOALS
Goal 3: Enhance and promote quality of life in the community. b: Deliver high quality and safe recreational, social, environmental, educational, and cultural services.

Goal 3: Enhance and promote quality of life in the community. e: Develop and strengthen collaborative partnerships to enhance and promote quality of life programs, projects, and services.

6. DISCUSSION AND BACKGROUND
In 1977, with the use of Federal Grant funds, the County of Orange and the City of Orange jointly constructed the facility located immediately adjacent to the El Modena Branch Library at 392 South Hewes Street, with the sole intention of operating a Head Start Preschool Program. The primary purpose of the Head Start Preschool Program is to provide quality, preschool instruction to children of City of Orange Printed on 1/18/2024Page 1 of 2
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Item #: 3.5. 1/23/2024 File #: 23-0796
purpose of the Head Start Preschool Program is to provide quality, preschool instruction to children of low-income families.

Orange Children and Parents Together (OCPT), a nonprofit organization, has been operating the Head Start Preschool Programs in the City of Orange since 1967. OCPT operates six Head Start and State preschool programs at various Child Development Centers in the City of Orange, including this facility on Hewes. OCPT works closely with numerous community agencies to provide comprehensive multidisciplinary programs and services to meet the needs of Orange children and families.

The management of City real property and facilities falls within the purview of the Public Works Department. Hence, OCPT has been working and coordinating with staff to draft a new Lease Agreement to replace the one that expired in December 2023. This new Lease Agreement has a ten- year term that ends in December 2033, with two five-year extensions to renew. In addition to agreeing to accept the leased property in its current state, OCPT will also undertake to maintain the leased property.

Moreover, the Lease Agreement sets forth lease payments that remain below the fair market value for properties of similar size and capacity as a reflection of the City's recognition and support of OCPT's significant public service commitment. OCPT provides an invaluable service to the community by offering a no-cost preschool childhood development program to children from low- income families. This initiative promotes educational equity and provides programs that directly benefit underprivileged sections of our community. The reduced lease cost is our collective commitment to social responsibility and an investment in the future of our city’s youth.

As it stands, OCPT’s current lease rate is set at $1,500 per month, payable in ten installments annually. In the newly negotiated Lease Agreement between the City and OCPT, both parties agreed that the lease rate would be adjusted to $1,600 per month. This new rate, still below market value, will be applicable for the first two years with a structured plan for biannual increases of $1,000 thereafter. The total ten-year lease payment from OCPT to the City is $180,000.

Finally, the updated Lease Agreement also includes specific provisions to ensure that OCPT maintains its focus on the public purpose mission of operating the Head Start Preschool Program.

These provisions are essential to confirm that OCPT continues to fulfill its vital role in serving the community.

7. ATTACHMENTS
· Lease Agreement
City of Orange Printed on 1/18/2024Page 2 of 2
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Agenda Item
City Council
Item #: 3.5. 1/23/2024 File #: 23-0796
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director

1. SUBJECT
Lease Agreement with the City of Orange and Orange Children and Parents Together.

5. STRATEGIC PLAN GOALS
Goal 3: Enhance and promote quality of life in the community. b: Deliver high quality and safe recreational, social, environmental, educational, and cultural services.

Goal 3: Enhance and promote quality of life in the community. e: Develop and strengthen collaborative partnerships to enhance and promote quality of life programs, projects, and services.

6. DISCUSSION AND BACKGROUND
In 1977, with the use of Federal Grant funds, the County of Orange and the City of Orange jointly constructed the facility located immediately adjacent to the El Modena Branch Library at 392 South Hewes Street, with the sole intention of operating a Head Start Preschool Program. The primary purpose of the Head Start Preschool Program is to provide quality, preschool instruction to children of City of Orange Printed on 1/17/2024Page 1 of 2
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Item #: 3.5. 1/23/2024 File #: 23-0796
purpose of the Head Start Preschool Program is to provide quality, preschool instruction to children of low-income families.

Finally, the updated Lease Agreement also includes specific provisions to ensure that OCPT maintains its focus on the public purpose mission of operating the Head Start Preschool Program.

These provisions are essential to confirm that OCPT continues to fulfill its vital role in serving the community.

7. ATTACHMENTS
· Lease Agreement
City of Orange Printed on 1/17/2024Page 2 of 2
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LEASE AGREEMENT

This Lease Agreement (the "Lease") is dated as of ________________, 20 24, between the CITY OF ORANGE (the "Landlord") and ORANGE CHILDREN AND PARENTS TOGETHER, Inc., a California corporation (“Tenant”), who agree as follows:

1. The Leased Property: The property to be leased hereunder is that certain real property with the address of 392 South Hewes in the City of Orange, adjacent to the El Modena Branch Library (“Library”) and as is more specifically described in the Legal Description attached hereto as Exhibit "A" (the “Leased Property”) and incorporated herein.

2. Term: The term of the Lease shall commence on January 1, 2024 (hereafter “Anniversary Date”) and shall continue for ten years until December 31, 2033 (“Initial Term”), unless terminated in accordance with this Lease. Tenant has two (2) five-year options to extend the term of the Lease upon the same terms and provisions as the Initial Term, at Landlord’s sole and absolute discretion (“Extended Term”). Either party may terminate the Lease at any time by providing at least sixty (60) days’ advance written notice to the other party.

3. Rent: Tenant shall pay to Landlord rent in the annual amount as follows for the lease of the Property, which sum shall be payable by the annual Anniversary Date of the Lease.

2024 – Annual Rent - $16,000 ($1,600 per month)
2025 – Annual Rent - $16,000 ($1,600 per month)
2026 – Annual Rent - $17,000 ($1,700 per month)
2027 – Annual Rent - $17,000 ($1,700 per month)
2028 – Annual Rent - $18,000 ($1,800 per month)
2029 – Annual Rent - $18,000 ($1,800 per month)
2030 – Annual Rent - $19,000 ($1,900 per month)
2031 – Annual Rent - $19,000 ($1,900 per month)
2032 – Annual Rent - $20,000 ($2,000 per month)
2033 – Annual Rent - $20,000 ($2,000 per month)

Rent is payable in ten equal monthly installments. The first installment shall be due on January 1, 2024, and then on the 1st day of each of month thereafter except during the months of July and August in which months no rent shall be paid. During the Extended Term, the rent shall be increased by $100/month every even-numbered year of that Extended Term.

4. Improvements: Under this Lease, Landlord shall have no obligation or responsibility, actual or implied, to install, construct, accommodate, or make any improvements to the Leased Property prior to, or as a condition of, Tenant's occupation of the Leased Property.

5. As-Is Condition: Tenant warrants and agrees that Tenant has inspected the Leased Property. Tenant agrees to take possession of the Leased Property in an AS -IS condition (which exists on the date this Lease is signed). Landlord makes no representations regarding the condition, status, compliance with laws or suitability for a particular purpose for Tenant's use. 126
2 6. Condition Upon Surrender: Upon termination of this Lease, Tenant shall surrender the Leased Property to Landlord in as good condition as when originally received, ordinary wear and tear and damage by fire, earthquake, flood or act of God excepted, and including any repairs or improvements made by Tenant, provided, however, Tenant shall be required to shampoo the carpets and clean the Leased Property , including, without limitation, the restrooms. If Tenant fails to maintain the Leased Property in good order and repair, after thirty (30) days' prior written notice, Landlord may, at its option, make such repairs, and Tenant shall pay the reasonable cost thereof as additional rent hereunder within ten (10) days after receipt of a written statement therefor. In the event the giving of thirty (30) days' prior notice may result in additional damage to the Leased Property, Landlord may make such repairs, at Tenant's expense, without thirty days' prior written notice.

7. Maintenance: Tenant shall, at its sole expense, be responsible for all maintenance of the Leased Property and shall keep the Leased Property in good order, condition and repair. Landlord may enter the Leased Property to make repairs after providing Tenant with seventy-two (72) hours written notice to Tenant to make the necessary repairs. The costs thereof shall be the responsibility of Tenant, which shall pay such costs within thirty (30) days of receiving an invoice. Failure to pay such costs shall be grounds for termination of the Lease.

8. Alterations: Tenant shall not make, or allow to be made, any permanent alterations to the Leased Property without the prior written consent of Landlord. Any such request shall be directed to the City Manager or their designee.

9. Use: Tenant shall use the Leased Property to operate a Headstart/Preschool and related programs (“Permitted Use”) and for no other unrelated use or purpose. Tenant shall maintain all federal Headstrart Performance standards and comply with any and all federal and State laws related to the provision of services to children . Tenants shall not commit, or allow to be committed, upon the Leased Property, any waste or nuisance, or any act disturbing the operation of the Library.

Landlord shall assure the same co nsiderations be given to the Tenant by persons employed at or utilizing the Library.

10. Inspection by a Certified Access Specialist : Landlord discloses that the. Leased Property have not undergone inspection by a Certified Access Specialist as referenced in California Civil Code Section 1938 subsection (e) which provides: "A Certified Access Specialist (CASp) can inspect the subject Leased Property and determine whether the subject Leased Property comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspecti on of the subject Leased Property, the commercial property owner or landlord may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject Leased Property for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to conect violations of construction-related accessibility standards within the Leased Property." Pursuant to the foregoing Section 1938(e), Tenant acknowledges and agrees that, if Tenant wishes to have the Lease Leased Property inspected by a CASp: (1) Tenant must notify Landlord on or before the date when Tenant executes this Lease pursuant to the election below; (ii) the inspection will be at Tenant’s sole cost and expense; (iii) the inspection must be scheduled through Landlo rd and in coordination with the Building’s property manager; (iv) any repairs or modifications necessary 127
3 to correct any violation of construction-related accessibility standards that is noted in the CASp report shall be Tenat’s responsibility; and (v) Tenant must provide a copy of the CASp report to Landlord on completion.By initialing below, Tenant represents that:

Tenant wishes to have a CASp inspection of the Leased Leased Property Initials: ________

Tenant hereby waives its right to have a CASp inspection of the Leased Leased Property Initials: ________

11. Late Charge: Landlord may assess a late charge not to exceed ten percent (10%) for any Rent payment not received by Landlord by the 15 th day of each month in which it is due. Rent shall be paid to Landlord at the address specified in Section 25 of this Lease, or at such other address as Landlord may from time to time designate upon written notice. Parties agree that this late charge represents a fair and reasonable estimate of the costs that Landlord will inure by reasons of late payments by Tenant. Acceptance of any late charge shall not constitute a waiver of Tennant’s default with respect to the overdue amount or prevent Landlord from exercising any of the other rights and remedies available to Landlord. Any Rent not received by the 25 th day of each month in which it is due shall in addition, accrue interest at a rate of ten percent (10%) per annum.

12. Non-Discrimination: The tenant herein covenants by and for himself or herself (as the case may be), his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry, in the leasing, subleasing, transferring, use or enjoyment of the land herein leased nor shall the tenant himself or herself (as the case may be), or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy, of tenants, lessees, sublessees, subtenants or vendees in the land herein leased.

13. Assignment: Tenant may not assign or sublet any part of the Leased Property without the written permission of Landlord. Any attempted assignment, whether voluntary or involuntary, without such permission, is grounds for termination of the Lease.

14. Right of Re-Entry; Temporary Use: Landlord and its agents all have the right to enter the Leased Property at any reasonable time to inspect and to perform needed work on the Leased Property as provided in this Lease. Landlord, subject to the approval of Tenant's Executive Director after reasonable notice, may temporarily occupy the Leased Property on weekends and after 6:00 p.m. on weekdays for any Landlord purpose. In this event, the Leased Property shall be returned to Tenant in the same condition as when Landlord occupied the Leased Property.

15. Compliance with the Law:

a. Tenant shall not use the Property or permit anything to be done in or about the Property which will in any way conflict with any applicable law or regulation.

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4 b. The judgment of any court of competent jurisdiction or the admission of Tenant in any action against Tenant, whether Landlord be a party thereof or not, that Tenant has violated any law or regulation shall be conclusive of that fact as between Landlord and Tenant.

c. Tenant shall keep the Property free and clear of any and all liens and encumbrances which may arise at any time in connection with any improvement work by Tenant or its agents and contractors. In addition, Tenant shall indemnify, defend, and hold Landl ord harmless from and against any and all costs, expenses, claims, demands, damages, actions or liabilities of any kind which may arise in connection with any improvement work by Tenant or its agents and contractors.

16. Taxes: Tenant shall pay, at least 5 days prior to the date the same shall be delinquent, all real estate and real property taxes, or possessory interest tax, assessed against the Property, including any added assessment or omitted assessment which may be levied against the Property commencing upon the Anniversary Date and any increase in the assessment to the Property. In addition, Tenant shall, during the term of this Lease, pay any levy for the installation, maintenance or operations of improvements affecting the Property as may be assessed by any governmental boards or bureaus. Tenant shall furnish in writing to Landlord, within five (5) days before the applicable delinquency date for the tax, evidence of payment of all taxes and assessments required to be paid by Tenant. If Landlord does not receive reasonable evidence of payment by the 5th day prior to the delinquency date, Landlord may, at its option, pay the tax for Tenant, following written notice to Tenant of Landlord's intent to pay such tax. In such case, Tenant shall reimburse Landlord immediately upon demand, plus interest at the rate of 10% per annum.

17. Hold Harmless; Indemnification: Tenant shall indemnify, defend, and hold Landlord and the Property harmless from and against any and all costs, claims, demands, actions, liability, loss, or damage, including attorney's fees and costs (collectively, "Claims") whether for injury to or death of persons or damage to real or personal property or otherwise, arising out of or in connection with the Property, Tenant's use or occupancy of the Property or any activity, work, or other thing done or permitted by Tenant in or about the Property during the term of this Lease. These provisions shall not apply to any active negligence or intentional acts or omissions of Landlord and its agents, servants, and employees. In any claims brought against Landlord by reason of any such Claims, Tenant shall defend the same at Tenant's expense by counsel reasonably satisfactory to Landlord. If the ability of Tenant to use the Property is interrupted, Landlord shall not be liable to Tenant for any loss or damages occasioned by such loss of use.

18. Insurance:

a. Tenant shall maintain in force at all times during the term of this Lease fire and extended coverage insurance (all risk of physical loss) covering the Property, in an amount of $500,000.

b. Tenant shall maintain at all times during the term of this Lease commercial general liability insurance, insuring Landlord and Tenant against any liability arising out of the use, occupancy, or maintenance of the Property and all areas appurtenant thereto, including without limitation personal injury, death and property damage. Such insurance shall be in an amount not less than $2,000,000 per occurrence, combined single limit. This policy shall include contractual liability 129
5 and indemnity coverage which shall insure performance by Tenant of the indemnity and defense provisions set forth in this Lease. The limits of said insurance shall not, however, be construed to limit the liability of Tenant under this Lease.

c. Tenant shall procure and maintain at all times during the term of this Lease Workers' Compensation coverage as required by law.

d. All insurance shall be written on an occurrence basis and shall be with financially responsible insurance companies acceptable to Landlord.

e. Except for Workers’ Compensation insurance, all insurance shall: (1) name the Landlord, the City of Orange, and their officers, employees, contractors and agents as additional insureds and (2) provide that the coverage is primary and non -contributory wi th respect to all additional insureds. All insurance shall waive all right of recovery by way of subrogation against all additional insureds.

f. Prior to the execution of the Lease, Tenant shall deliver to Landlord certificates of insurance evidencing the existence and amount of such insurance. Endorsements evidencing the required additional insureds and waiver of subrogation rights on all appl icable policies shall also be provided. The certificates shall provide that no policy shall be cancelled or subject to reduction of coverage or other modification except after thirty (30) days prior written notice to Landlord by the insurer. Tenant shall, upon request from Landlord, immediately deliver to Landlord copies of all insurance policies (including the declarations pages) in effect with respect to Tenant's business and the Property.

19. Utilities: Tenant shall make all arrangements for and pay for all services and utilities to the Leased Property. Landlord shall not be responsible or liable to Tenant for interruption or stoppages of utilities or other services to the Leased Property.

20. Holding Over: In the event Tenant fails to vacate the Leased Property and fulfill all of its obligations of the Lease at the end of the term, Tenant shall be liable for all damages incurred by Landlord by reason of the inability to deliver possession of the Property or any portion thereof to any other person.

21. Damage, Reconstruction:

a. Tenant shall immediately deliver to Landlord any insurance proceeds received in connection with any damage or destruction of the Leased Property, with the exception of amounts specifically attributable to the loss or damage of Tenant's own personal property. The entire insurance proceeds shall remain the sole property of Landlord, without regard to whether the Property is actually restored or the actual cost of any restoration. Tenant shall be liable to Landlord for any shortfall in insurance proceeds to repair any damage to the Leased Property. In the event of any significant damage, the parties shall meet and mutually agree whether or not to terminate the Lease.

b. Tenant shall not be entitled to any compensation or damages from Landlord for loss of the use of the whole or any part of the Property, Tenant's personal property, or any 130
6 inconvenience or annoyance occasioned by such damage, repair, reconstruction, or restoration.

Tenant waives the provisions of California Civil Code sections 1932(2) and 1933(4) with respect to any destruction of the Property.

22. Default: Upon any default or breach of this Lease by Tenant, Landlord shall deliver written notice to Tenant, which notice shall specify the nature of the default or breach. If the default or breach is not cured by Tenant within seventy-two (72) hours after the delivery of such written notice, then Landlord shall be entitled to exercise any and all rights or remedies which may be available at law or in equity, including terminating this Lease. Any and all rights or remedies available to Landlord shall be cumulative, and not alternative. Notwithstanding any provision to the contrary contained herein, if any default which cannot be cured by the payment of money is not reasonably curable within seventy-two (72) hours, then Landlord shall allow a reasonable period to cure the default as long as Tenant commences the cure within the 72 hour period and diligently proceeds to completion of the cure, and as long as Landlord's rights with respect to the Property are not prejudiced by so doing.

23. Signs: Tenant shall not have the right to place or maintain any sign on the Leased Property without the prior written consent of the Landlord. Any such request shall be directed to the City Manager or his designee.

24. Hazardous Materials: Tenant shall not use, store or dispose of on the Leased Property any solid, liquid, or gaseous matter, or any combination thereof, which is, or may become, hazardous, toxic, or radioactive including, but not limited to, those materials listed in Sections 66680 through 66685 of Title 22 of the California Administrative Code, Division 4, Chapter 30 (as may be amended from time to time). Tenant shall not discharge, leak, or emit into the atmosphere, the ground, or any body of water, any material which may pollute or contaminate the same, or adversely affect the health or safety of persons, whether on the Leased Property or anywhere else, or the condition, use, or enjoyment of the Property.

25. Notices: Any notices required to be given or allowed to be given under this Lease shall be deemed given and completed upon the deposit into the U.S. Mail of a sealed envelope, with adequate postage, containing the subject notice and addressed to the party receiving the notice at the dress set forth below. Any change in address by either party shall not be deemed effective for purposes of this article unless the party changing addresses gives notice of the change pursuant to this Section.

All written notices to Landlord shall be addressed to:

City of Orange
City Manager
300 East Chapman Avenue
Orange, CA 92866

All written notices to Tenant shall be addressed to:

Orange Children and Parents Together, Inc.

Executive Director
392 South Hewes Street
Orange, CA 92869
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7 26. Miscellaneous Provisions:

a. Enrollment Summary . By November 15 th of each year the Tenant, shall provide a written report indicating the city of residency of all children enrolled in the Program , the total number of participants, the services provided at the facility and a facility capital improvement project list.

b. Notice to Program Participants . Tenant shall provide to each of its students and his or her parents a notice, with a copy to Landlord, stating: (1) that Tenant is an entity distinct and separate from Landlord; (2) that Tenant is leasing facility from Landlord; (3) that the operation of the Program by Tenant is the sole responsibility of Tenant and not of Landlord; and (4) that the Tenant is solely responsible for all aspects of the Program.

c. Disclosure to Landlord. Tenant shall submit to Landlord a copy of its financial and program audit by November 15th of each year.

27. General Provisions:

a. Waiver. The waiver by the parties of any term, covenant, or condition herein contained shall not be a waiver of such term, covenant, or condition on any subsequent breach.

b. Notices. All notices and demands which are required to be given by either party to the other shall be in writing. All notices shall be sent by United States Mail, postage prepaid, and addressed to the parties at the address set forth below, or to such other place as either party may from time to time designate in a written notice.

c. Binding. The covenants and conditions of this Lease, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators, and assigns of the parties.

d. Attorney’s Fees. If any action or proceeding is brought by either party against the other under this Lease, whether for interpretation, enforcement, recovery of possession, or otherwise, the prevailing party shall be entitled to recover all costs and expenses, including th e fees of its attorney in such action or proceeding. This provision shall also apply to any post judgment action by either party, including without limitation efforts to enforce a judgment.

e. Severability. Any provisions of this Lease which are held invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision and such other provisions shall remain in full force and effect.

f. Cumulative Remedies. No remedy or election shall be deemed exclusive but shall be cumulative with all other remedies at law or in equity.

g. Governing Law . This Lease shall be governed by the laws of the State of California.

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8 h. Amendments. No amendment, change, or addition to, or waiver of termination of, this Lease shall be valid unless in writing and signed by both Landlord and Tenant.

i. Authority. The party executing this Lease on behalf of Tenant has full authority to do so and to bind Tenant to perform this Lease.

j. Ambiguities. This Lease has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Lease. Each party has been given the opportunity to consult with experienced and knowledgeable legal counsel. Any law that would require interpretation of any ambiguities in this Lease against the drafting party is not applicable and is waived.

k. Counterparts. This Lease may be executed in one more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

l. Entire Agreement. This Lease is the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral and written agreements and discussions between or among them. The parties hereto acknowledge and agree that there are no conditions, covenants, agreements, or understandings between or among them with respect to the subject matter of this Lease except as set forth in this case. This Lease may be amended only by a further writing signed by all parties hereto.

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9 “TENANT” “CITY”

ORANGE CHILDREN & PARENTS CITY OF ORANGE, a municipal corporation TOGETHER, INC., a California corporation

By: By:

Printed Name: Daniel R. Slater, Mayor
Title:

*By: ATTEST:

Printed Name:

Title:

Pamela Coleman, City Clerk

APPROVED AS TO FORM:

Melissa M. Crosthwaite
Senior Assistant City Attorney

*NOTE: City requires the following signature(s) on behalf of the Tenant:
-- (1) the Chairman of the Board, the President or a Vice -President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR -- The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to City.

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Agenda Item
City Council
Item #: 3.6. 1/23/2024 File #: 24-0004
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director

1. SUBJECT
Third Amendment to Agreement with Tetra Tech, Inc. for providing geotechnical and construction support services for Well 28 Equipping and Public Pocket Park Construction Project.

2. SUMMARY
Construction management and technical support are needed for the construction of the Well 28 Equipping and Public Pocket Park project. The additional cost proposed by Tetra Tech, Inc. for these services is $83,500.

3. RECOMMENDED ACTION
Approve the Third Amendment for $83,500 with Tetra Tech Inc. bringing the total contract to a not to exceed amount of $938,200; and authorize the Mayor and City Clerk to execute on behalf of the City.

4. FISCAL IMPACT
The total cost for this amendment is $83,500 and will be funded in Well 28 Construction (18120) through Water Fund (600) account number 600.8011.56411.18120.

5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.

Goal 4.Provide outstanding public service:
b. Provide facilities and services to meet customer expectations.

6. DISCUSSION AND BACKGROUND
In late 2019, the City selected Tetra Tech, Inc. to design and provide construction support services for the Well 28 and Public Pocket Park project. Phase 1 of the project, which includes the drilling of the well, was completed in 2022. Phase 2, which includes the equipping of the well and construction of the Public Pocket Park Project, is currently under construction. The allocated budget for reviewing and responding to shop drawing submittals and request for information (RFI) has been exhausted while there are additional submittals that still need to be reviewed and approved. These submittals are highly technical and require support from the design team to ensure the project is constructed per the approved plans and specifications. At staff’srequest, Tetra Tech, Inc. provided a proposal for additional construction management support in the amount of $83,500, bringing the total design cost City of Orange Printed on 1/17/2024Page 1 of 2
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Item #: 3.6. 1/23/2024 File #: 24-0004
additional construction management support in the amount of $83,500, bringing the total design cost of the project to $938,200. Construction of the project is expected to be completed by October 2024.

7. ATTACHMENTS
· Third Amendment to Agreement with Tetra Tech, Inc.

City of Orange Printed on 1/17/2024Page 2 of 2
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136
Agenda Item
City Council
Item #: 3.6. 1/23/2024 File #: 24-0004
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director

1. SUBJECT
Third Amendment to Agreement with Tetra Tech, Inc. for providing geotechnical and construction support services for Well 28 Equipping and Public Pocket Park Construction Project.

4. FISCAL IMPACT
The total cost for this amendment is $83,500 and will be funded in Well 28 Construction (18120) through Water Fund (600) account number 600.8011.56411.18120.

5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.

Goal 4.Provide outstanding public service:
b. Provide facilities and services to meet customer expectations.

6. DISCUSSION AND BACKGROUND
In late 2019, the City selected Tetra Tech, Inc. to design and provide construction support services for the Well 28 and Public Pocket Park project. Phase 1 of the project, which includes the drilling of the well, was completed in 2022. Phase 2, which includes the equipping of the well and construction of the Public Pocket Park Project, is currently under construction. The allocated budget for reviewing and responding to shop drawing submittals and request for information (RFI) has been exhausted while there are additional submittals that still need to be reviewed and approved. These submittals are highly technical and require support from the design team to ensure the project is constructed per the approved plans and specifications. At staff’srequest, Tetra Tech, Inc. provided a proposal for additional construction management support in the amount of $83,500, bringing the total design cost City of Orange Printed on 1/17/2024Page 1 of 2
powered by Legistar™
137
Item #: 3.6. 1/23/2024 File #: 24-0004
additional construction management support in the amount of $83,500, bringing the total design cost of the project to $938,200. Construction of the project is expected to be completed by October 2024.

7. ATTACHMENTS
· Third Amendment to Agreement with Tetra Tech, Inc.

City of Orange Printed on 1/17/2024Page 2 of 2
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138

THIRD AMENDMENT
TO

CONSULTANT SERVICES AGREEMENT

THIS THIRD AMENDMENT TO CONSULTANT SERVICES AGREEMENT (the “Third Amendment”) is made and entered into as of __________________, 2024, by and between the CITY OF ORANGE, a municipal corporation ( “City”), and TETRA TECH, INC. , a Delaware corporation (“Consultant”), with reference to the following:

A. City and Consultant entered into a Consultant Services Agreement (Agreement No. 6780) dated June 11, 2019, which is incorporated herein by this reference (the “Original Agreement”); and

B. City and Consultant amended the Original Agreement to revise the Scope of Services and increase the compensation by a First Amendment to Consultant Services Agreement (Agreement No. 6780.1) dated April 1, 2020 , which is incorporated herein by this reference (the “First Amendment”); and

C. City and Consultant amended the Original Agreement to revise the Scope of Services and increase the compensation by a Second Amendment to Consultant Services Agreement (Agreement No. 6780.2) dated April 12, 2022, which is incorporated herein by this reference (the “Second Amendment”); and

D. City and Consultant desire to further amend the Original Agreement to modify, amend and supplement certain portions of the Original Agreement to revise the Scope of Services and increase the compensation.

NOW, THEREFORE, the parties hereby agree as follows:

Section 1. Defined Terms. Except as otherwise defined herein, all capitalized terms used herein shall have the meanings set forth for such terms in the Original Agreement.

Section 2. Cross-References. City and Consultant agree that all references in this Third Amendment are deemed and construed to refer to the Original Agreement, as implemented by this Third Amendment.

Section 3 Revised Scope of Services. The Scope of Services, Section 1, Exhibit A of the Original Agreement, is hereby amended, modified and supplemented to include the services described on Exhibit A attached hereto and incorporated herein by this reference.

Section 4 Compensation. The total not -to-exceed compensation for the services to be rendered as set forth in Section 2.a of the Original Agreement is increased by EIGHTY-THREE THOUSAND FIVE HUNDRED DOLLARS and 00/100 ($ 83,500.00) and Section 2.a is hereby amended in its entirety to read as follows:
139

2 “Consultant's total compensation for all services performed under this Agreement, shall not exceed NINE HUNDRED THIRTY -EIGHT THOUSAND TWO HUNDRED DOLLARS and 00/100 ($938,200.00) without the prior written authorization of City.”

Section 5. Integration. This Third Amendment amends, as set forth herein, the Original Agreement and, except as specifically amended hereby, the Original Agreement shall remain in full force and effect. To the extent that there is any conflict or inconsistency between the terms and provisions of this Third Amendment and the terms and provisions of the Original Agreement, the terms and provisions of this Third Amendment shall control and govern the rights and obligations of the parties.

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3 IN WITNESS of this Third Amendment, the parties enter into this Third Amendment on the year and day first above written.

“CONSULTANT” “CITY”

TETRA TECH, INC, a Delaware corporation CITY OF ORANGE, a municipal corporation

*By: By:

Printed Name: Daniel R. Slater, Mayor
Title:

*By: ATTEST:

Printed Name:

Title:

Pamela Coleman, City Clerk

APPROVED AS TO FORM:

Nathalie Adourian
Senior Assistant City Attorney

*NOTE: If CONSULTANT is a corporation, the City requires the following signature(s):
-- (1) the Chairman of the Board, the President or a Vice -President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR -- The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to the City.

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141

EXHIBIT “A”

SUPPLEMENTAL SCOPE OF SERVICES

[Behind this page.]

142
17885 Von Karman Avenue, Suite 500, Irvine, CA 92614-5227 Tel 949.809.5000 tetratech.com
December 15, 2023
Tuan Cao, PE
Senior Civil Engineer
City of Orange
189 S. Water Street
Orange, CA 92866
Reference: Well No. 28 and Public Mini Park – Agreement No. 6780 Additional Work Request No. 4 for Additional Construction Support for Well No. 28 Dear Mr. Cao,
Tetra Tech has been providing engineering services on the Well No. 28 and Public Mini Park Project since June 2019 under Agreement No. 6780. Tetra Tech is currently providing construction phase services and the approved budget based on Amendment No. 2 dated April 12, 2023 is $854,700.00.

The City has a proposal from Tetra Tech to provide for Additional Construction Support for the Well No. 28 Well Equipping and PFAS Treatment System Project. We have prepared our proposal based on our engineering support during construction, construction management and inspection services provided for Orange County Water District (OCWD) on previous PFAS treatment projects. The following correspondence summarizes the additional scope and budget requested to provide additional engineering construction support services for the well equipping portion of the project.

Existing Scope of Services
Our current contract includes engineering services during construction for well equipping and PFAS treatment system and based on the following level of effort:
· Project Management 18 months
· Attendance at Construction Meetings 6 meetings
· Shop Drawing Review 90 submittals
· RFI Responses 30 responses
· Plan Revisions 40 hours
· Record Drawings
As of October 27, 2023 Tetra Tech has invoiced $829,750 (approximately 97%) of the total authorized budget of $854,700.00. The construction is anticipated to be completed in March 2025. Tetra Tech has exceeded estimated level effort for meetings, shop drawing reviews and RFI responses included in our revised level of effort estimated in Additional Work Request No. 3. However, with the amount of submittal reviews, RFI responses, meetings and correspondence we will not have sufficient budget to provide services through the end of construction without additional budget authorization.

Additional Scope of Services
The City desires Tetra Tech to provide additional construction support for the well equipping portion of the project. Materials testing shall be the Contractor’s responsibility per the Special Provisions Section 4 and 143
Mr. Tuan Cao, PE
December 15, 2023
2 TETRA TECH
specialty inspections will be performed by Ninyo & Moore who is contracted by the City. The following summarizes our recommended scope of services and responsible party. · California Division of Drinking Water (DDW) Permit Assistance – Tetra Tech · Construction Management Services (review of progress payments, schedules, quality control, and change order evaluation) – City
· Preparation of Design Clarifications and Change Order Evaluation Assistance – Tetra Tech · Technical Support for Well Equipping Construction – Tetra Tech · On-site Improvements and Well Equipping Observation/Inspection – City · Soil, Compaction Testing, and Concrete Cylinder Testing – Contractor · Rebar, Concrete, Anchor Bolts Deputy Inspection – Ninyo & Moore (contracted by City) · Technical Support for Well Equipping Start-up – Tetra Tech · Technical Support Landscaping and Architectural – David Volz Design and Secoy Architects (contracted by Tetra Tech)
· Geotechnical Observation – Leighton Consulting, Inc. (contracted by Tetra Tech) · Additional Construction Support by Tetra Tech for submittal reviews, RFI responses, and project correspondence

SCOPE OF WORK
Tetra Tech proposes to provide the following Scope of Work to provide Additional Construction Support for Well No. 28 Well Equipping portion of the project.

Task 1 – DDW Permitting

1.1 DDW Permit Assistance – Tetra Tech will coordinate with DDW and prepare permit application for the well equipping portion of the project. Tetra Tech will then coordinate and process the permit thru DDW until it is completed. We have assumed water quality sampling and reporting will be performed by others.

We have assumed two (2) rounds of reviews and comments from DDW.

Task 2 – Additional Construction Support
Tetra Tech will provide an experienced team to perform the following construction services:

2.1 Review project change orders pertaining to well equipping. We have assumed up to 2 change orders may need to be reviewed including preparation of support documents at the request of the City.

2.2 Provide Technical Support for proposed landscaping and architectural features. Technical support to be provided by David Volz Design and Secoy Architects. Including assistance in park sign design.

2.3 Well Equipping start-up assistance. We have assumed 20 hours of engineering technical support for start-up assistance.

2.4 Provide Geotechnical Observation during construction. Geotechnical Observation to be provided by Leighton Consulting, Inc. and assumed 180 hours (prevailing wage) of observation for the following construction activities:
a. Site Grading
b. Foundation Excavations
144
Mr. Tuan Cao, PE
December 15, 2023
3 TETRA TECH
c. Retaining Wall Backfill and Subdrain
d. Utility Trench Backfill
e. Subgrades
f. AB and AC Placement

2.5 Provide additional construction support to review product submittal, respond to RFIs, and construction correspondence.

Materials testing shall be performed by the Contractor and specialty inspections will be performed by Ninyo & Moore who is contracted by the City.

BUDGET REQUEST SUMMARY
Tetra Tech is requesting the following additional budget authorization to provide additional construction support for Well No. 28 well equipping portion of the project. The following is a breakdown of the requested budget authorization for each task.

Task
No. Task Description Total Budget
1 DDW Permitting $ 5,000
DDW Permit Assistance $ 5,000
2 Additional Construction Support $ 78,500
Review Change Orders (2) $ 3,100
Technical Support – Landscape and Architecture $ 20,900 Well Equipping Start-up Assistance $ 6,000
Geotechnical Observation $ 38,500
Additional Construction Support $ 10,000
Total Budget Amount $ 83,500
Tetra Tech is requesting $83,500 additional budget authorization to compensate us for this additional work. We have attached our hourly manpower spreadsheet per task and revised rate sheet for 2023 - 2024. By authorizing Tasks 1 through 2 Tetra Tech’s authorized budget amount of $854,700.00 will be increased to $938,200.00.

If you have any questions or require additional information, please do not hesitate to call.

Sincerely,
Laurence Esguerra, PE
Project Manager
LE:LE
Attachment
O:\Projects\Irvine\09394\200-09394-19001\ProjMgmt\Correspondence\Construction Management Proposal\1-City\Revision 02\Well 28 Equipping Additoinal Construction Services Well Equipping Proposal_rev02.docx
145
Price Summary / Totals
Task Pricing Totals 83,500
Specify Add'l Fees on Setup 0
Technology Use Fee
Proj Area > 83,500
Submitted to: City of Orange (Attn: Tuan Cao. PE)
Contract Type: T&M
Project Phases / Tasks From Thru Months 111 11 63 5 32 0.00% 24,345 58,581 - - 574 83,500 2 3 4 7
Task 1 - DDW Permitting 09/04/23 12/30/24 15.6 35 310 31 1 8 2 20 4,955 - - - 45 5,000

1.1 DDW Assistance 31 1 8 2 20 4,955 45 5,000
Task 2 - Construction Management ad Inspection 03/16/24 03/15/25 11.7 26 234 80 10 55 3 12 19,390 58,581 - - 529 78,500

2.1 Review Change Orders (2) 18 2 4 12 3,090 10 3,100

2.2 Technical Support - Landscaping and Susan Secoy - - - - - - 20,700 - - 200 20,900 David Volz Design - - - 12,075 100 12,175 Susan Secoy - - - 8,625 100 8,725

2.3 Well Equipping Start-up (20 hours) 20 8 12 5,800 200 6,000

2.4 Geotechnical Observation 3 - 1 2 - 500 37,881 - - 119 38,500 Leighton 3 - 1 2 - 500 37,881 119 38,500

2.5 Additional Construction Support 39 38 1 10,000 10,000 Totals 09/04/23 03/15/25 18.0 111 11 63 5 32 0.00% 24,345 58,581 - - 574 83,500 7 Resource
Well No. 28 Additional Construction Support
Price Proposal
Revision Date:

Jun 13, 2023
Labor Plan
Additional Construction Support for Orange Well No. 28 Well Equipping Total Price Pricing by Resource
Management
Program Manager
(Tom Epperson)
Task Pricing
TotalsSchedule
Work Days
Off
Work Days Total
Labor Hrs Subs Travel Mat'ls & Equip ODCs
Labor
Rate Esc. Labor
Project Manager 2
(Laurence Esguerra)
Sr Project
Administrator (Deana
Escamilla )
Process
Engineer 2 (Kathern
Lungren)
Tetra Tech - Confidential and Proprietary Page 1 of 1 Printed 12/15/2023146 Rate Rate
Project Management Construction
Project Manager 1 $225.00 Construction Project Rep 1 $90.00 Project Manager 2 $260.00 Construction Project Rep 2 $100.00 Sr Project Manager $305.00 Sr Constr Project Rep 1 $120.00 Program Manager $335.00 Sr Constr Project Rep 2 $135.00 Principal in Charge $335.00 Construction Manager 1 $185.00 Construction Manager 2 $210.00
Construction Director $260.00
Engineers General & Administrative
Engineering Technician $66.00 Project Assistant 1 $68.00 Engineer 1 $100.00 Project Assistant 2 $77.00
Engineer 2 $115.00 Project Administrator $97.00
Engineer 3 $130.00 Sr Project Administrator $120.00
Project Engineer 1 $153.00 Sr Graphic Artist $154.00
Project Engineer 2 $168.00 Technical Writer 1 $100.00
Sr Engineer 1 $170.00 Technical Writer 2 $126.00
Sr Engineer 2 $175.00 Sr Technical Writer $158.00
Sr Engineer 3 $210.00
Principal Engineer $305.00
Planners Information Technology
Planner 1 $106.00 Systems Analyst / Programmer 1 $78.00 Planner 2 $118.00 Systems Analyst / Programmer 2 $118.00 Sr Planner 1 $128.00 Sr Sys Analyst / Programmer 1 $132.00 Sr Planner 2 $154.00 Sr Systems Analyst / Programmer 2 $200.00 Sr Planner 3 $178.00
Project Accounting
Designers & Technicians Project Analyst 1 $92.00
CAD Technician 1 $75.00 Project Analyst 2 $118.00
CAD Technician 2 $90.00 Sr Project Analyst $158.00
CAD Technician 3 $105.00
CAD Designer $115.00 Reimbursable In-House Costs:

Sr CAD Designer 1 $145.00 Photo Copies (B&W 8.5”x11”)
Sr CAD Designer 2 $148.00 Photo Copies (B&W 11”x17”)
CAD Director $175.00 Color Copies (up to 8.5"x11")
Survey Tech 1 $60.00 Color Copies (to 11"x17")
Compact Discs
Large format copies
Health & Safety
H&S Administrator $97.00
Sr H&S Administrator $118.00 Mileage-Company Vehicle
H&S Manager $148.00 Mileage-POV
*current GSA POV mileage rate subject to change
All other direct costs, such as production, special photography, postage, delivery services, overnight mail, printing and any other services performed by subconsultant will be billed at cost plus 15%. 2023/2024

HOURLY CHARGE RATE AND EXPENSE REIMBURSEMENT SCHEDULE
NOTE: Rates subject to change annually. 147
Agenda Item
City Council
Item #: 3.7. 1/23/2024 File #: 24-0023
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Amy Harpster, Interim Library Services Director

1. SUBJECT
Appropriation of $36,260 in designated donation funding received from the Orange Public Library Foundation.

2. SUMMARY
This $36,260 donation will be used to support the Library’s Adult Literacy Program and update audiovisual equipment in the Community Room at El Modena Branch Library.

3. RECOMMENDED ACTION

1. Accept into the City’sbudget a $36,260 donation from Orange Public Library Foundation, into revenue account number 100.2001.48390.19322, General Fund - Orange Public Library Foundation.

2. Authorize the appropriation of $36,260 into the following expenditure account numbers:
$20,000 100.2004.55131.19322 Furniture & Machinery
$16,260 100.2001.53001.20307 Materials & Supplies

4. FISCAL IMPACT
The total appropriation for this donation is funded by the additional revenue received from the Orange Public Library Foundation.

5. STRATEGIC PLAN GOALS
Goal 3: Enhance and promote quality of life in the community. e: Develop and strengthen collaborative partnerships to enhance and promote quality of life programs, projects, and services.

6. DISCUSSION AND BACKGROUND
The Orange Public Library Foundation is donating $36,260 to enhance and expand the Library’s public spaces. A portion of these funds was donated during the “Raise Your Paddle” portion of the Foundation’s 2023 Library Legacy Awards & Celebration to support the Library’s Adult Literacy Program. The donation will purchase collection materials, technology, and program supplies for the Literacy spaces at the Orange Public Library & History Center and the El Modena and Taft Branch Libraries. Funds will also be used to upgrade the sound system, projector, and projector screen in the Community Room at the El Modena Branch Library. The Community Room is often reserved by local organizations and businesses, City departments, and the Library Foundation to present a variety of City of Orange Printed on 1/17/2024Page 1 of 2
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Item #: 3.7. 1/23/2024 File #: 24-0023
organizations and businesses, City departments, and the Library Foundation to present a variety of meetings and programs to the community throughout the year.

The Orange Public Library will publicize the Foundation’scontributions in a variety of ways, including plaques where appropriate, and credit for support on the Library’swebsite, social media, flyers, and calendars.

7. ATTACHMENTS
· None
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Agenda Item
City Council
Item #: 3.7. 1/23/2024 File #: 24-0023
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Amy Harpster, Interim Library Services Director

1. SUBJECT
Appropriation of $36,260 in designated donation funding received from the Orange Public Library Foundation.

2. SUMMARY
This $36,260 donation will be used to support the Library’s Adult Literacy Program and update audiovisual equipment in the Community Room at El Modena Branch Library.

3. RECOMMENDED ACTION

1. Accept into the City’sbudget a $36,260 donation from Orange Public Library Foundation, into revenue account number 100.2001.48390.19322, General Fund - Orange Public Library Foundation.

2. Authorize the appropriation of $36,260 into the following expenditure account numbers:
$20,000 100.2004.55131.19322 Furniture & Machinery
$16,260 100.2001.53001.20307 Materials & Supplies

4. FISCAL IMPACT
The total appropriation for this donation is funded by the additional revenue received from the Orange Public Library Foundation.

6. DISCUSSION AND BACKGROUND
The Orange Public Library Foundation is donating $36,260 to enhance and expand the Library’s public spaces. A portion of these funds was donated during the “Raise Your Paddle” portion of the Foundation’s 2023 Library Legacy Awards & Celebration to support the Library’s Adult Literacy Program. The donation will purchase collection materials, technology, and program supplies for the Literacy spaces at the Orange Public Library & History Center and the El Modena and Taft Branch Libraries. Funds will also be used to upgrade the sound system, projector, and projector screen in the Community Room at the El Modena Branch Library. The Community Room is often reserved by local organizations and businesses, City departments, and the Library Foundation to present a variety of City of Orange Printed on 1/17/2024Page 1 of 2
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Item #: 3.7. 1/23/2024 File #: 24-0023
organizations and businesses, City departments, and the Library Foundation to present a variety of meetings and programs to the community throughout the year.

7. ATTACHMENTS
· None
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Agenda Item
City Council
Item #: 3.8. 1/23/2024 File #: 24-0024
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director

1. SUBJECT
Award of Sourcewell Contract to Horizons Construction Company International, Inc. for facility repairs, maintenance, and safety improvements; and finding of CEQA exemption.

2. SUMMARY
Award Horizons Construction Company International, Inc., a construction contract for facility repairs, maintenance, and safety improvements (SP-4279)

3. RECOMMENDED ACTION

2. Find that the proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “existing facilities” Class 1.

4. FISCAL IMPACT
The total expenditure for this contract is $146,563 and will be funded through the Capital Projects Fund:
500.5028.56020.19809 $81,619
500.5028.56020.20494 64,944
Total: $146,563

5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.

Goal 2: Be a fiscally healthy community
a: Expend fiscal resources responsibly.

6. DISCUSSION AND BACKGROUND
The Public Works Department has identified some critical facility repairs that must be completed. The projects are as follows:

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Item #: 3.8. 1/23/2024 File #: 24-0024

1. Fire Station 3 - Shower Leak Repair
The existing ADA shower at the fire station is in disrepair, necessitating urgent attention.

Notably, a leak issue extends to the exterior walls, exacerbating moisture-related concerns.

Immediate repairs are needed to address functionality and structural integrity, primarily focusing on mitigating moisture issues to prevent further damage. The total cost for the repairs is $5,258.

2. Community Services Building - Backflow Preventer Replacement and Sewer Line Repair Due to Tree Root Intrusion
The sewer line in the Community Services building on Grand St. has been compromised due to tree root intrusion. This issue poses a risk to the building's infrastructure and requires immediate repair. Additionally, the backflow device for the fire suppression system on Chapman Ave. is compromised and necessitates replacement. The total cost for the repairs is $76,362.

3. Administration Building Security Door Improvements
The project aims to enhance the security and accessibility of the Administrative Building at the Civic Center campus. To achieve this, a new secure storefront will be installed, replacing the existing half-door adjacent to the City Clerk counter. The installation of this door will provide more security for the office area in the Administrative Building. It will be more consistent in controlling access at our other buildings in the Civic Center campus. The new door will be installed with access control and ADA improvements. The total cost for the repairs is $64,943.

To hire a skilled contractor to undertake these projects at a reasonable cost, staff contacted many vendors and utilized several procurement strategies. Staff collaborated with Gordian EzIQC's project coordinator to develop the scope of work for the projects using a Sourcewell contractor. This procurement method is a cooperative purchasing arrangement that several government agencies use to minimize costs and staff resource impacts. Using Sourcewell, a public agency that competitively bids on construction tasks, specifications, materials, equipment, and labor costs, the City can access highly qualified specialty contractors and lower overall capital costs. The City is a member of Sourcewell and has used the cooperative agreements procurement process.

After consideration, Horizon Construction Company International, Inc. (Contract No. CA-R8-GB01- 123021-HCC) has been recommended by staff for the project. The proposed price has been reviewed, deemed fair, and reasonable, consistent with established unit prices outlined in the contract with Sourcewell. The contractor's proposal for the scheduled work comes in at $127,446.

However, staff recognizes that unforeseen work and services may be necessary for the project.

Therefore, anticipating such contingencies, an additional $19,117 (15%) has been added to the initial sum, bringing the total cost to $146,563.

We anticipate the projects will commence in March and be completed within 120 days.

7. ENVIRONMENTAL REVIEW
Categorical Exemption: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 (Class 1 - Existing Facilities) in that the project consists of repairs, maintenance, and safety improvement at existing public facilities and results in no expansion of use beyond that existing at the time of the City’s City of Orange Printed on 1/17/2024Page 2 of 3
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Item #: 3.8. 1/23/2024 File #: 24-0024
public facilities and results in no expansion of use beyond that existing at the time of the City’s determination.

8. ATTACHMENTS
· Contract with Horizons Construction Company International, Inc.

City of Orange Printed on 1/17/2024Page 3 of 3
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154
Agenda Item
City Council
Item #: 3.8. 1/23/2024 File #: 24-0024
TO: Honorable Mayor and Members of the City Council
THRU: Tom Kisela, City Manager
FROM: Christopher Cash, Public Works Director

1. SUBJECT
Award of Sourcewell Contract to Horizons Construction Company International, Inc. for facility repairs, maintenance, and safety improvements; and finding of CEQA exemption.

2. SUMMARY
Award Horizons Construction Company International, Inc., a construction contract for facility repairs, maintenance, and safety improvements (SP-4279)

3. RECOMMENDED ACTION

2. Find that the proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 “existing facilities” Class 1.

4. FISCAL IMPACT
The total expenditure for this contract is $146,563 and will be funded through the Capital Projects Fund:
500.5028.56020.19809 $81,619
500.5028.56020.20494 64,944
Total: $146,563

5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.

Goal 2: Be a fiscally healthy community
a: Expend fiscal resources responsibly.

6. DISCUSSION AND BACKGROUND
The Public Works Department has identified some critical facility repairs that must be completed. The projects are as follows:

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Item #: 3.8. 1/23/2024 File #: 24-0024

1. Fire Station 3 - Shower Leak Repair
The existing ADA shower at the fire station is in disrepair, necessitating urgent attention.

Notably, a leak issue extends to the exterior walls, exacerbating moisture-related concerns.

Immediate repairs are needed to address functionality and structural integrity, primarily focusing on mitigating moisture issues to prevent further damage. The total cost for the repairs is $5,258.

However, staff recognizes that unforeseen work and services may be necessary for the project.

Therefore, anticipating such contingencies, an additional $19,117 (15%) has been added to the initial sum, bringing the total cost to $146,563.

We anticipate the projects will commence in March and be completed within 120 days.

7. ENVIRONMENTAL REVIEW
Categorical Exemption: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines 15301 (Class 1 - Existing Facilities) in that the project consists of repairs, maintenance, and safety improvement at existing public facilities and results in no expansion of use beyond that existing at the time of the City’s City of Orange Printed on 1/17/2024Page 2 of 3
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Item #: 3.8. 1/23/2024 File #: 24-0024
public facilities and results in no expansion of use beyond that existing at the time of the City’s determination.

8. ATTACHMENTS
· Contract with Horizons Construction Company International, Inc.

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CONTRACT
[Facility Repairs, Maintenance, and Safety Improvements (SP-4279) Sourcewell EZIQC Contract No CA-R8-GB01-123021-HCC]

THIS CONTRACT (the “Contract”) is made and entered into as of ________________, 2024 (“Effective Date”) by and between the CITY OF ORANGE, a municipal corporation (“City”), and HORIZONS CONSTRUCTION COMPANY INTERNATIONAL, INC., (“Contractor”), who agree as follows.

ARTICLE 1
Work Performed

a. For and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by City, and under the conditions expressed in the two (2) bonds presented to City with this Contract and incorporated herein by this reference, Contractor hereby agrees to and shall do all the work and furnish all the labor, materials, tools and equipment, except such as are mentioned in the specifications to be furnished by City to Contractor, necessary to complete in good workmanship and substantial manner the work (the “Work”) described in:

(1) The latest edition of the "City of Orange Standard Plans and Specifications" (the “Orange Book”) with the term "Engineer," as used in the Orange Book and in this Contract, to specifically include the City Engineer (or designee);

(2) The "Standard Specifications for Public Works Construction ” (the “Greenbook”), and all amendments thereto, except the definition of “Subcontractor” in Section 1.2 (General – Terms and Definitions) of Part 1 (General Provisions) of the Greenbook, which is hereby amended in its entirety to read as follows: “Subcontractor – An individual, firm, or corporation having a direct contract with the Contractor for the performance of a part of the Work;”

(3) The “City of Orange Standard Special Provisions;”

(4) The Standard Plans; and

(5) Contractor’s Bid Proposal , which is on file with City’s Department of Public Works.

b. Contractor acknowledges that it has received the Plans from City and that a complete copy of the Plans are in its possession and are hereby specifically referred to and by such reference made a part hereof. The Orange Book, Greenbook and City of Orange Standard Special Provisions and Standard Plans are on file with City’s Public Works Director and are hereby specifically referred to and by such reference made a part hereof. Contractor hereby acknowledges that it has read, reviewed and understands the Plans, the Orange Book, the Greenbook, the Special Provisions, the Standard Plans, and the Encroachment Permit as they relate to the Work, all of which documents shall be referred to herein collectively as the “Plans and Specifications.”

158
2 c. Contractor acknowledges the provisions of Chapter 8.28 of the Orange Municipal Code which requires, among other things, that Contractor utilize City’s exclusive solid waste hauler for the rental of bins for trash and debris removal and imposes mandatory recycling requirements for self-hauled construction and demolition waste. The terms and conditions set forth in this Contract shall control over any terms and conditions in the Plans and Specifications to the contrary.

d. The Work shall be performed in conformity with the Plans and Specifications and the Bid Proposal and all applicable laws, including any and all applicable federal and state labor laws and standards and applicable prevailing wage requirements and any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment.

e. Unless and until otherwise notified in writing by City’s Public Works Director, City’s Assistant Field Services Manager, Matthew Lorenzen (“Authorized City Representative”), shall be the person to whom Contractor will report for the performance of the Work hereunder. It is understood that Contractor’s performance hereunder shall be under the direction and supervision of the Authorized City Representative or such other person as City’s Public Works Director may designate from time to time, that Contractor shall coordinate the Work hereunder with the Authorized City Representative to the extent required by the Authorized City Representative, and that all performances required hereunder by Contractor shall be performed to the satisfaction of the Authorized City Representative or City’s Public Works Director.

f. It is expressly agreed by and between the parties hereto that should there be any conflict between the terms of this instrument and Contractor’s Bid Proposal, then this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said Bid Proposal conflicting herewith.

g. Contractor agrees that it has an obligation to reset all permanent survey markers as stated in the Orange Book, Part 4, Section 400-2, “Permanent Survey Markers ,” and obtain the approval for pre- and post-construction centerline tie sheets and Corner Records from the County of Orange and deliver said approved documents to City as soon as they are received. This obligation extends to any of its subcontractors that have performed work in this regard. This subsection survives completion of the Work, the Notice of Completion, a nd final payment and shall be an enforceable obligation until fulfilled.]

ARTICLE 2
Commencement of Work

Contractor shall commence the Work provided for in this Contract within fifteen (15) days of the date of the issuance by City of a Notice to Proceed and diligently prosecute completion of the Work within One Hundred Twenty (120) calendar days from such date, unless legal extension is granted in accordance with the terms set forth in the Greenbook. Time is of the essence in this Contract. Contractor shall do all things necessary and incidental to the prosecution of Contractor's Work.

159
3 ARTICLE 3
Compensation

a. Contractor agrees to receive and accept an amount not to exceed ONE HUNDRED TWENTY-SEVEN THOUSAND FOUR HUNDRED FORTY -FIVE DOLLARS and 87/100 ($127,445.87) unless said amount is amended by Contract Change Order approved by the City, as compensation for furnishing all materials and doing all the Work contemplated and embraced in this Contract. Said compensation covers (1) all loss or damage arising out of the nature of the Work, from the acts of the elements; (2) any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the Work until its acceptance by City, other than as provided below ; (3) all risks of every description connected with the Work; (4) all expenses incurred by or in consequence of the suspension or discontinuance of the Work; and (5) well and faithfully completing the Work, and for the whole thereof, in the manner and according to the Plans and Specifications, and requirements of the Authorized City Representative under them.

Retention amounts shall be withheld from progress payments as required by law unless Contractor provides securities in lieu of retention.

b. In addition to the scheduled Work to be performed by the Contractor, the parties recognize that additional, unforeseen work and services may be required by the Authorized City Representative. In anticipation of such contingencies, the sum of NINETEEN THOUSAND ONE HUNDRED SIXTEEN DOLLARS and 90 /100 ($19,116.90) has been added to the total compensation of this Contract. The Authorized City Representative may approve the additional work and the actual costs incurred by the Contractor in performance of additional work or services in accordance with such amount as the Authorized City Representative and the Contractor may agree upon in advance. Said additional work or services and the amount of compensation therefor, up to the amount of the authorized contingency, shall be memorialized in the form of a Contract Amendment approved by the City Manager on a form acceptable to the City Attorney . The Contractor agrees to perform only that work or those services that are specifically requested by the Authorized City Representative. Any and all additional work and services performed under this Contract shall be completed in such sequence as to assure their completion as expeditiously as is consistent with professional skill and care in accordance with a cost estimate or proposal submitted to and approved by the Authorized City Representative prior to the commencement of such Work or services.

c. The total amount of compensation under this Contract, including contingencies, shall not exceed ONE HUNDRED FORTY -SIX THOUSAND FIVE HUNDRED SIXTY -TWO HUNDRED DOLLARS and 77/100 ($146,562.77).

ARTICLE 4
Licenses

Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state or federal law to perform the Work contemplated by this Contract and that Contractor and subcontractors shall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Contract.

160
4 ARTICLE 5
Guarantees

a. Contractor guarantees the construction and installation of all Work included in the Plans and Specifications for which Contractor has been awarded this Contract.

b. Should any of the materials or equipment installed pursuant to this Contract prove defective or should the Work as a whole prove defective, due to faulty equipment, workmanship, materials furnished or methods of installations, or should said Work or any part thereof fail to function properly, as designed, due to any of the above causes within twelve (12) months after the date on which said Work is accepted by City, Contractor shall make repairs and furnish such materials and equipment as are necessary to be furnished and installed within fifteen (15) calendar days after the receipt of a demand from City.

c. Said Work will be deemed defective within the meaning of this guarantee in the event that it fails to function as originally intended either by the Plans and Specifications of this Contract or by the manufacturer(s) of the equipment incorporated into the Work.

d. In the event repairs are not made within fifteen (15) calendar days after Contractor's receipt of a demand from City, City shall have the unqualified option to make any needed repairs or replacements itself or by any other contractor. Contractor shall re imburse City, upon demand, for all expenses incurred in restoring said Work to the condition contemplated in this Contract, including the cost of any equipment or materials replaced.

e. It is understood that emergency repairs may, by necessity, be made by City.

Therefore, when defective equipment, materials or workmanship result in emergency repairs by City, Contractor shall reimburse City, upon demand, for all expenses incurred. Emergency repairs will be deemed as those repairs determined by City’s Director of Public Works to be necessary due to an immediate detriment to the health, safety, welfare or convenience of the residents of City.

ARTICLE 6
Water Quality

a. The Santa Ana Regional Water Quality Control Board (“RWQCB”) has issued National Pollutant Discharge Elimination System (“NPDES”) Permit No. R8 -2009-0030 (the “Permit”), which governs storm water and non -storm water discharges resulting from municipal activities performed by City or its contractors. In order to comply with the Permit requirements, the County of Orange has prepared a Drainage Area Management Plan (“DAMP”), containing Model Maintenance Procedures with Best Management Practices (“BMPs”) th at City and its contractors must adhere to. The Model Maintenance Procedures contain pollution prevention and source control techniques to minimize the impact of those activities upon dry -weather urban runoff, storm water runoff, and receiving water quali ty. Examples include: wash water from cleaning of sidewalks or parking lots must be collected and disposed of in the sewer or landscaped areas.

161
5 b. The Permit, the DAMP and the Model Maintenance Procedures are on file in the office of City’s Director of Public Works. Contractor hereby acknowledges that it has read, reviewed and understands the Permit, the DAMP and the Model Maintenance Procedures, as they relate to the Work and hereby shall perform the Work in conformance therewith.

ARTICLE 7
Independent Contractor; Contractor not Agent

a. At all times during the term of this Contract, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar as the result of Contractor’s services rendered pursuant to this Contrac t. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Contract. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be required for furnishing services pursuant to this Contract. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security, withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever. Contractor acknowledges that Contractor and any subcontractors, agents or employees employed by Contractor shall not, under an y circumstances, be considered employees of City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System be nefits, or health, life, dental, long -term disability or workers' compensation insurance benefits.

b. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever.

ARTICLE 8
Public Work; Prevailing Wage

a. The Work which is the subject of this Contract is a “public work,” as that term is defined in Section 1720 of the California Labor Code, for which prevailing wages must be paid.

To the extent Contractor’s employees will perform any work that falls within any of the classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that Contractor, and any subcontractor under it, shall pay not less than the specified prevailing ra tes of wages to all such workers . The general prevailing wage determinations for crafts can be located on the website of the Department of Industrial Relations ( www.dir.ca.gov/DLSR). Additionally, to perform work under this Contract, Contractor must meet all State registration requirements and criteria, including project compliance monitoring.

b. Attached hereto as Attachment No. 1 and incorporated herein by this reference is a copy of the provisions of Sections 1725.5, 1771, 1771.1, 1771.4, 1775, 1776, 1777.5, 1813 and 1815 of the California Labor Code. Contractor hereby acknowledges that it has read, reviewed 162
6 and understands those provisions of the Labor Code and shall prosecute and complete the Work under this Contract in strict compliance with all of those terms and provisions.

c. Contractor shall secure the payment of compensation to its employees in accordance with the provisions of Section 3700 of the California Labor Code. Accordingly, and as required by Section 1861 of the California Labor Code, Contractor hereby certifies as follows:

“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”

d. Contractor shall indemnify, protect, defend and hold harmless City and its officers, employees, contractors and agents, with counsel reasonably acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense, and/or “increased costs” (including reasonable attorney’s fees, court and litigation costs, and fees of expert witnesses) which result or arise in any way from the noncompliance by Contractor of any applicable local, state and/or federal law, including, without limitat ion, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages). It is agreed by the parties that, in connection with the construction of the W ork which is the subject of this Contract, Contractor shall bear all risks of payment or non -payment of state prevailing wages. “Increased costs” as used in this paragraph shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be enacted, adopted or amended from time t o time. The foregoing indemnity shall survive termination of this Contract.

ARTICLE 9
Equal Employment Opportunity

During the performance of this Contract, Contractor agrees as follows:

Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor shall post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.

b. Contractor shall, in all solicitations and advertisements for employees placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, men tal or physical disability, or any other basis prohibited by applicable law. 163
7 c. Contractor shall cause the foregoing paragraphs (a) and (b) to be inserted in all subcontracts for any Work covered by this Contract, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.

ARTICLE 10
Conflicts of Interest

Contractor agrees that it shall not make, participate in the making, or in any way attempt to use its position as a contractor to influence any decision of City in which Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code. Contractor further agrees that it shall not be eligible to work as the builder for any project for which the design work is part of this Contract.

ARTICLE 11
Indemnity

Contractor shall defend, indemnify and hold harmless City and its officers, officials, agents, and employees from and against:

a. Any and all claims, liabilities, losses, damages, penalties, costs or expenses (including reasonable attorneys' fees and court costs) which City may directly or indirectly sustain or suffer arising from or as a result of the death of any person or any acc ident, injury, loss or damage whatsoever caused to any person or the property of any person which shall occur on or adjacent to the real property which is the subject of this Contract, or in connection with performance of this Contract which may be direc tly or indirectly caused by the acts or omissions of Contractor or its officers, employees, contractors or agents, or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance. Contractor shall not be responsible for (and such indemnity shall not apply to) any willful misconduct, negligence or breach of this Contract by City or its officers, officials, agents, and employees. The foregoing indemnity shall survive termination of this Contract.

b. Any and all claims under workers’ compensation acts and other employee benefit acts with respect to Contractor’s employees or Contractor’s subcontractor’s employees arising out of Contractor’s Work under this Contract, including any and all claims under any law pertaining to Contractor’s status as an independent contractor.

ARTICLE 12
Insurance

a. Contractor shall procure and maintain for the duration of this Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder and the results of that Work by Contractor, its agents, representatives, employees or subcontractors. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth below shall be maintained for the duration of the Contract.
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8 b. Contractor shall maintain the following minimum amount of insurance: the greater of either the limits set forth in (1) through (4), below; or all of the insurance coverage and/or limits carried by or available to Contractor.

(1) General Liability $2,000,000 per occurrence for bodily injury, personal injury and property damage. If
Commercial General Liability insurance
or other form with a general aggregate
limit is used, either the general aggregate
limit shall apply separately to this
project/location or the general aggregate
limit shall be twice the required
occurrence limit.

(2) Automobile Liability $1,000,000 per accident for bodily injury and property damage.

(3) Workers’ Compensation as required by the State of California.

(4) Employer’s Liability $1,000,000 per accident for bodily injury or disease.

c. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Contract are sufficient to cover the obligations of Contractor under this Contract.

d. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self - insured retentions with respect to City, its officers, officials, agents and employees; or Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

e. Each policy of general liability and automotive liability insurance shall contain, or be endorsed to contain, the following provisions:

(1) City, its officers, officials, agents, and employees are declared to be additional insureds under the terms of the policy, with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of Contractor (any auto), and with respect to liability arising out of Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such Work or operations. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional insured as a contracting party. The minimum coverage required by Subsection 12.b, above, shall apply to City as an additional insured.

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9 (2) For any claims related to this Contract, Contractor’s insurance coverage shall be primary insurance with respect to City, its officers, officials, agents and employees. Any insurance or self-insurance maintained by City, its officers, officials, agents and employees shall be excess of Contractor’s insurance and shall not contribute with it.

(3) Coverage shall not be canceled, except after thirty (30) days’ prior written notice has been provided to City.

f. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Article 12. The endorsements shall be on forms acceptable to City. All certificates and endorsements are to be received and approved by City before the Work commences. However, failure to do so shall not operate as a waiver of these insurance requirements. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.

g. All insurance procured and maintained by Contractor shall be issued by insurers admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide.

h. Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Contract unless otherwise directed by City. In such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs and any and all damages resulting therefrom by way of set-off from any sums owed Contractor.

i. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing insurance t o either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such insurance.

The Workers’ Compensation pol icy shall be endorsed with a waiver of subrogation in favor of City for all Work performed by Contractor, its employees, agents and subcontractors. Contractor shall obtain any other endorsement that may be necessary to effect this waiver of subrogation.

j. Contractor shall require and verify that all subcontractors maintain insurance meeting all of the requirements stated herein.

ARTICLE 13
Termination

City, acting through its City Manager or designee, reserves the right to terminate this Contract for any reason by giving five (5) days’ written notice of intent to terminate to Contractor.

Upon receipt of notice, Contractor shall immediately cease work, unless the notice provides otherwise. Should City terminate this Contract, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with 166
10 this Contract, unless such termination shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits.

ARTICLE 14
Maintenance and Inspection of Records

In accordance with generally accepted accounting principles, Contractor and its subcontractors shall maintain reasonably full and complete books, documents, papers, accounting records and other information (collectively, the “records”) pertaining to the co sts of and completion of services performed under this Contract. During the term of this Contract and for a period of three (3) years after termination or completion of this Contract, City shall have the right to inspect and/or audit Contractor's records pertaining to the performance of this Contract at Contractor's office. Contractor shall make available all such records for inspection or audit at its offices during normal business hours and upon three (3) days’ notice from City, and copies thereof shall be furnished if requested.

ARTICLE 15
Compliance with Laws

a. Contractor shall be knowledgeable of and comply with all local, state and federal laws pertaining to the subject matter hereof or in any way regulating the activities undertaken by Contractor or any subcontractor hereunder.

b. Contractor represents and warrants that it:

(1) Has complied and shall at all times during the term of this Contract comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders, including, without limitation, the Immigration Reform and Control Act of 1986 (IRCA); and

(2) Has not and will not knowingly employ any individual to perform services under this Contract who is ineligible to work in the United States or under the terms of this Contract; and

(3) Has properly maintained, and shall at all times during the term of this Contract properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I -9 for each of Contractor’s employees; and

(4) Has responded, and shall at all times during the term of this Contract respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I -9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration.

c. Contractor shall require all subcontractors and/or subconsultants to make the same representations and warranties required by this Article 15 when hired to perform services under this Contract.
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11 d. Contractor shall, upon request of City, provide a list of all employees working under this Contract and shall provide, to the reasonable satisfaction of City, verification that all such employees are eligible to work in the United States. All costs associ ated with such verification shall be borne by Contractor. Once such request has been made, Contractor may not change employees working under this Contract without written notice to City, accompanied by the verification required herein for such employees. Contractor shall require all subcontractors and/or sub-consultants to make the same verification when hired to perform services under this Contract.

e. If Contractor, or a subcontractor or subconsultant, knowingly employs an employee providing Work under this Contract who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee , such shall constitute a material breach of this Contract and may be cause for immediate termination of this Contract by City.

f. Contractor shall indemnify and hold City, its officials and employees harmless for, of and from any loss, including but not limited to fines, penalties and corrective measures, City may sustain by reason of Contractor’s failure to comply with said laws, rules and regulati ons in connection with the performance of this Contract.

ARTICLE 16
Governing Law and Venue

This Contract shall be construed in accordance with and governed by the laws of the State of California and Contractor shall submit to the juri sdiction of California courts. Venue for any dispute arising under this Contract shall be in Orange County, California.

ARTICLE 17
Integration and Amendment

a. This Contract constitutes the entire agreement of the parties. No other agreement, oral or written, pertaining to the Work to be performed under this Contract shall be of any force or effect unless it is in writing and signed by both parties. Any Work performed which is inconsistent with or in violation of the provisions of this Contract shall not be compensated.

b. Amendments to this Contract must be in writing and signed by both parties. The City Manager is authorized to execute amendments to this Contract up to the amounts specified in Chapter 3.08 of the Orange Municipal Code.]

ARTICLE 18
Notice

Except as otherwise provided herein, all notices required under this Contract shall be in writing and delivered personally, by e-mail, or by first class mail, postage prepaid, to each party at the address listed below. Either party may change the notice address by notifying the other party in writing. Notices shall be deemed received upon receipt of same or within three (3) days of 168
12 deposit in the U.S. Mail, whichever is earlier. Notices sent by e-mail shall be deemed received on the date of the e-mail transmission.

“CONTRACTOR” “CITY”

Horizons Construction Company City of Orange
International, Inc. 300 E. Chapman Avenue
432 W. Meats Ave. Orange, CA 92866-1591
Orange, CA 92865
Attn: Kinan Kortash Attn: Matthew Lorenzen

Telephone: 714-626-0000 Telephone: 714-532-6488
E-Mail: [email protected] E-Mail: [email protected]

ARTICLE 19
Claim Resolution

City and Contractor agree that the claim resolution process applicable to any claim by Contractor in connection with the Work provided herein shall be subject to the procedures set forth in California Public Contract Code Section 9204, attached hereto as Attachment No. 2, and incorporated herein by this reference.

ARTICLE 20
Counterparts

This Contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures.

[Remainder of page intentionally left blank; signatures on next page] 169
13 “CITY”

CONTRACT, BONDS AND INSURANCE
APPROVED BY:

Melissa M. Crosthwaite
Senior Assistant City Attorney

CITY OF ORANGE, a municipal corporation

By:

Daniel R. Slater
Mayor of the City of Orange

ATTEST:

Pamela Coleman, City Clerk

“CONTRACTOR”

HORIZONS CONSTRUCTION COMPANY
INTERNATIONAL, INC., a California
Corporation

[Note: Signature of Chairman of the By:

Board, President or Vice President is Printed Name:
required] Title:

[Note: Signature of Secretary, Assistant By:

Secretary, Chief Financial Officer or Printed Name:

Assistant Treasurer is also required] Title:

√

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Attachment No. 1

Page 1 of 13 ends

Orange City CouncilJanuary 23, 2024

Orange City Council
January 23, 2024