Agenda packet — Mayor and City Council, August 16, 2023 (part 2 of 3)

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RESOLUTION NO 2023-131

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

AUTHORIZING THE CITY MANAGER TO EXECUTE THE

AMENDMENT TO THE PROFESSIONAL SERVICES

AGREEMENT BETWEEN CITY OF SAN BERNARDINO

AND REDWOOD PRIVATE SECUIRTY FOR PARK
PATROL AT CITY PARKS AND CITYWIDE EVENTS;

AUTHORIZING THE AGENCY DIRECTOR OF

ADMINSTRATIVE SERVICES THE AMEND THE
FY2023/24 OPERATING BUDGET BY $180,000 FROM THE

CULTURAL DEVELOPMENT FUND FOR PARK PATROL
AT CITY PARKS AND CITYWIDE EVENTS; AUTHORIZE

THE AGENCY DIRECTOR OF ADMINISTRATIVE

SERVICES TO ISSUE A PURCHASE ORDER NOT TO
EXCEED $180,000.

WHEREAS, the general public have raised concerns regarding the maintenance and security of city parks, with specific requests for oversight and security presence, and WHEREAS, the Parks, Recreation and Community Services Department staff developed a plan to enhance maintenance efforts and security patrols at City parks, and WHEREAS, an RFP released for security services, reviewed by staff, and Redwood Security Services was selected to perform security patrol services for City parks and City-wide events.

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. Mayor and City council Hereby authorize the City Manager or his designee to execute the amendment to the Professional Services Agreement with Redwood Private Security for Park Patrol and City Parks and Citywide events.

SECTION 3. Mayor and City Council hereby authorize the Agency Director of Administrative Services to amend the FY 2023/24 operating budget in the amount of $180,000 from the Cultural Development Fund.

SECTION 3.The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule

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Resolution No. 2023-131
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that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

SECTION 6.Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.

SECTION 7. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 16th day of August 2023.

Helen Tran, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney

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Resolution No. 2023-131
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CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2023-131, adopted at a regular meeting held on the 16th day of August 2023 by the following vote:

Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of ____________ 2023.

Genoveva Rocha, CMC, City Clerk

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: August 16, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager
Lydie Gutfeld, Director of Parks, Recreation & Community Services
Department: Parks & Recreation & Community Services
Subject: Accept donation from Hillwood in the amount of $20,000 (All Wards)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2023-132 to:

1. Authorize City Manager to accept the donation from Hillwood in the amount of $20,000; and

2. Authorize the Agency Director of Administrative Services to amend the FY 2023/24 General Fund Operating Budget in both revenue and expenditures by $20,000; and allocate the expenditures to Youth Sports ($10,000) and the Symphony Concert ($10,000) in their respective expenditure accounts.

Executive Summary
The City received a donation from local development agency, Hillwood, in the amount of $20,000 to be used to subsidize the purchase of youth sports jerseys and to help fund a symphony concert at the Roosevelt Bowl, which will be held on September 9, 2023. Staff recommend accepting the donation and authorizing an amended to the Fiscal Year 2023/2024 budget.

Background
Staff continue to develop and nurture strong relationships with City businesses and organizations. Many events, services, and programs hosted by the City and the Parks, Recreation and Community Services Department are driven and supported by

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community-based organizations and local businesses.

Staff were approached by Hillwood, a Perot Company, in early March 2023 to discuss their desire to give back to the community through youth programs and fine arts. Staff recommended programs that are highly sought after such as youth sports programs as well as fine arts performances by groups such as the San Bernardino Symphony to be considered in their donation. Hillwood agreed to provide each program $10,000 for a total of $20,000.

Discussion
Symphony at Roosevelt Bowl
The donation will enable the San Bernardino Symphony consisting of 20 musicians, a singer, and the Maestro to share the stage for an evening performance at the Roosevelt Bowl on September 9, 2023, providing a completely free musical experience for all to enjoy.

The San Bernardino Symphony was first established in the Fall of 1929, it was conceived that communities with access to the arts were stronger and beyond vibrant places than those communities that lacked the access to the arts. This organization for over eighty years has been instrumental with supplying the community with music and the opportunity for music education.

Youth Sports Jerseys
The Youth Sports program has seen a significant increase in participation, which has also increased the cost of the program. The department strives to keep the program as affordable as possible without decreasing service levels. Staff have identified the cost of jerseys for the fiscal year; this donation will allow staff to purchase top-quality jerseys for the participants without passing the cost on to the families. The jerseys will be provided for the following youth sports: basketball, baseball, and soccer.

The City of San Bernardino Youth Sports program has been able to supply the youth residents of the City the opportunity to not only learn and grow in a sport; in addition, the opportunity for creating friendships. During the pandemic of 2020 Youth Sports saw a decline of participants. Since then, staff has been working to increase participation while upgrading the uniforms for tournaments to ensure that young players not only have an opportunity to play a sport, but also can feel a sense of pride and belonging.

By accepting this donation, staff will be able to enhance the community through fine art, music, and youth sports.
2021-2025 Strategic Targets and Goals
This request aligns with Strategic Target No. 2.b. Focused, Aligned Leadership and Unified Community – Build a culture that attracts, retains, and motivates the highest quality talent.

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Fiscal Impact
There is no fiscal impact to the city.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2023-132 to:

1. Authorize City Manager to accept the donation from Hillwood in the amount of $20,000; and

Attachments

1. Resolution No. 2023-132

2. Budget Amendment Form
Ward:

All Wards
Synopsis of Previous Council Actions:

N/A

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Resolution No. 2023-132
Resolution 2023-132
August 16, 2023

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RESOLUTION NO. 2023-132

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

AUTHORIZE THE CITY MANAGER TO ACCEPT

DONATION FROM HILLWOOD IN THE AMOUNT OF
$20,000, AUTHORIZE THE AGENCY DIRECTOR OF

ADMINISTRATIVE SERVICES TO AMEND THE BUDGET

TO APPROPRIATE THE GRANT FUNDS AS REVENUE
FOR FY 23-24, AUTHORIZE THE AGENCY DIRECTOR OF

ADMINISTRATIVE SERVICES TO AMEND THE BUDGET

TO APPROVE DONATED FUNDS TO BE USED FOR
YOUTH SPORTS ($10,000) AND SYMPHONY
CONCERT($10,000) AND AUTHORIZE THE AGENCY

DIRECTOR OF ADMINISTRATIVE SERVICES TO

APPROVE THE DONATED FUNDS TO BE USED FOR
YOUTH SPORTS ($10,000) AND THE SYMPHONY
CONCERT ($10,000) IN THEIR RESPECTIVE
EXPENDITURE ACCOUNTS.

WHEREAS, the Parks, Recreation and Community Services Department operate youth sports programs and various special events to provide unique experiences and enrichment for residents; and
WHEREAS, to continue to operate and host quality youth sports programs and special events, the Department offers sponsorship opportunities to businesses and individuals; and WHEREAS, Hillwood has donated a total of $20,000 for the uniform jerseys for youth sports programs ($10,000) and the symphony concert ($10,000).

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The Mayor and City Council hereby authorize the City Manager to accept the donation from Hillwood in the amount of $20,000.

SECTION 3. The Mayor and City Council hereby authorize the Agency Director of Administrative Services to amend the FY 23-24 Budget revenue and expenditure accounts to approve donated funds to be used for Youth Sports ($10,000) and the Symphony Concert ($10,000)

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SECTION 5.The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

SECTION 7. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 16th day of August 2023.

Helen Tran, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney

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Resolution No. 2023-132
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CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2023-132, adopted at a regular meeting held on the 16th day of August 2023 by the following vote:

Genoveva Rocha, CMC, City Clerk

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BUDGET AMENDMENT REQUEST
Transfer FROM: Transfer TO:

DR (CR)
Fund-Dept-Program Acct Amount Fund-Dept-Program Acct Amount 001-380-0001 4698 $ 20,000.00 001-380-0070 5111 $ 10,000.00 Material And Supplies
001-380-0076 5505 $ 10,000.00
Other Professional Services
Total Transfer Amount $20,000 Total Transfer Amount $20,000 JUSTIFICATION FOR TRANSFER REQUEST:

Requested by: Parks & Recreation
Department Head Signature Department

FINANCE USE ONLY
APPROVED:

Rev. 4.13.22 DIRECTOR OF FINANCE DATE

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: August 16, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager
Darren Goodman, Chief of Police
Department: Police
Subject: Technical Revision for the Purchase of Cellular Site Simulator Equipment (All Wards)
Recommendation:

Adopt Resolution No. 2023-133 of the Mayor and City Council of the City of San Bernardino, California, authorizing:

1. The City Manager to execute a goods purchase agreement between the City of San Bernardino and Tactical Support Equipment.

2. The Agency Director of Administrative Services to issue a Purchase Order to Tactical Support Equipment in an amount not exceeding $687,000.

Executive Summary
During the original purchasing process, staff identified a bidding error invalidating the initial RFQ. Tactical Support Equipment (TSE) was the winning bidder for the second RFQ process at a cost saving of $161,786 from the prior bid. The Mayor and City Council have previously approved the purchasing and budget amendments necessary to fund the requested equipment, so no additional costs are associated with this request. Staff requests that the Mayor and City Council authorize the execution of a goods purchase agreement with TSE and issuing a purchase order.

Background
The City was awarded $400,000 in UASI grant funding to purchase a Cellular Site Simulator and $25,000 for an appropriate transport vehicle. The City is obligated to cover any remaining balance. In June 2022, the City conducted an open bid solicitation process to purchase Cellular Site Simulator equipment. Tactical Support Equipment (TSE) was the best option bidder based on equipment availability and lowest cost. On November 16, 2022, the Mayor and City Council adopted resolution 2022-239, approving the Cellular Site Simulator Usage and Privacy Policy and a purchasing agreement between the City of San Bernardino and TSE. The Agency Director of Administrative Services was authorized to transfer $460,000 from the Asset Forfeiture

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Fund into the General Fund to cover the City’s portion of the equipment cost.

Discussion
During purchasing, staff discovered that TSE did not include sales tax in their winning bid. Consequently, the City conducted a new open bid solicitation in March 2023. Once again, TSE was the lowest, best option bidder that met RFQ requirements at a cost savings of $161,786 from the previous bid. TSE is a wholesale vendor and does not pay state tax. TSE calculated the California State Tax for the purchase at $60,112.50, which the City will pay the state upon purchasing the equipment. The total cost for the equipment, including taxes, is $747,112.50.
2021-2025 Strategic Targets and Goals
The request to spend grant funds to purchase cellular site simulator technology aligns with the following strategic targets and goals: 3. c. Improved Quality of Life: Evaluate and enhance the quality of public safety services.

Fiscal Impact
There is no additional fiscal impact with this item. Grant funding and Asset Forfeiture funding for this purchase were previously accepted and is recognized in the FY 2023/24 budget.

Conclusion
Adopt Resolution No. 2023-133 of the Mayor and City Council of the City of San Bernardino, California, authorizing:

1. The City Manager to execute a goods purchase agreement between the City of San Bernardino and Tactical Support Equipment.

2. The Agency Director of Administrative Services to issue a Purchase Order to Tactical Support Equipment in an amount not exceeding $687,000.

Attachments
Attachment 1 Resolution 2023-133
Attachment 2 Goods Purchase Agreement TSE
Attachment 3 Original Resolution 2022-239
Attachment 4 Original Goods Purchase Agreement
Ward:

All Wards
Synopsis of Previous Council Actions:

December 1, 2021 Mayor and Council adopted resolution 2021-283 accepting 2020 UASI grant funds

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November 16, 2022 Mayor and Council adopted resolution 2022-239 approving the purchase of cellular site equipment and the adoption of a cellular site simulator usage and privacy policy

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Resolution No. 2023-133
Resolution 2023-133
August 16, 2023

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RESOLUTION NO. 2023-133

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

AUTHORIZING THE CITY MANAGER TO EXECUTE A

GOODS PURCHASE AGREEMENT BETWEEN THE CITY

OF SAN BERANRDINO AND TACTICAL SUPPORT

EQUIPMENT, AND THE AGENCY DIRECTOR OF

ADMINISTRATIVE SERVICES TO ISSUE A PURCHASE

ORDER TO TACTICAL SUPPORT EQUIPMENT IN AN
AMOUNT NOT EXCEEDING $687,000.

WHEREAS, the City of San Bernardino was awarded $425,000 in grant funds for the FY2020 Urban Area Security Initiative Grant; and
WHEREAS, the City proposed and received approval to use $400,000 of the Urban Area Security Initiative grant funds for the purchase of a cellular site simulator in support of the goal of preparing for, preventing, and responding to security threats to the region; and WHEREAS, the City issued an RFQ requesting bids for the purchase of cellular site simulator technology and the winning bidder was Tactical Support Equipment, at a cost of $687,000; and
WHEREAS, there are sufficient funds in the Fiscal Year 2023/24 Adopted Budget to complete the purchase.

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The City Manager is hereby authorized to execute a goods purchase agreement, attached hereto as Exhibit “A,” between Tactical Support Equipment and the City of San Bernardino.

SECTION 3.The Agency Director of Administrative Services is authorized to issue a purchase order to Tactical Support Equipment in an amount not to exceed $687,000, supplanting Section 3 of the previously adopted Resolution 2022-239.

SECTION 4.The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that

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the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

SECTION 5.Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.

SECTION 6. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 16th day of August 2023.

Hellen Tran, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney

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Resolution No. 2023-133
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August 16, 2023

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CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2023-133, adopted at a regular meeting held on the 16th day of August 2023 by the following vote:

Genoveva Rocha, CMC, City Clerk

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CITY OF SAN BERNARDINO

GOODS PURCHASE AGREEMENT
This Goods Purchase Agreement (“Agreement”) is entered into this 16th day of August, 2023, by and between the City of San Bernardino, a charter city and municipal corporation organized under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401, County of San Bernardino, State of California (“City”), and TACTICAL SUPPORT EQUIPMENT, a CORPORATION with its principal place of business at 4039 Barefoot Rd, Fayetteville, NC. 28306 (“Supplier”). City and Supplier are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

Section 1. DEFINITIONS.

A. “Goods” means all machinery, equipment, supplies, items, parts, materials, labor or other services, including design, engineering and installation services, provided by Supplier as specified in Exhibit “A,” attached hereto and incorporated herein by reference.

B. “Delivery Date(s)” means that date or dates upon which the Goods is to be delivered to City, ready for approval, testing and/or use as specified in Exhibit “B.” Section 2. MATERIALS AND WORKMANSHIP.

When Exhibit “A” specifies machinery, equipment or material by manufacturer, model or trade name, no substitution will be made without City’s written approval. Machinery, equipment or material installed in the Goods without the approval required by this Section 2 will be deemed to be defective material for purposes of Section 4. Where machinery, equipment or materials are referred to in Exhibit “A” as equal to any particular standard, City will decide the question of equality. When requested by City, Supplier will furnish City with the name of the manufacturer, the performance capabilities and other pertinent information necessary to properly determine the quality and suitability of any machines, equipment and material to be incorporated in the Goods. Material samples will be submitted at City’s request.

Section 3. INSPECTIONS AND TESTS.

City shall have the right to inspect and/or test the Goods prior to acceptance. If upon inspection or testing the Goods or any portion thereof are found to be nonconforming, unsatisfactory, defective, of inferior quality or workmanship, or fail to meet any requirements or specifications contained in Exhibit “A,” then without prejudice to any other rights or remedies, City may reject the Goods or exercise any of its rights under Section 4.C. The inspection, failure to make inspection, acceptance of goods, or payment for goods shall not impair City’s right to reject nonconforming goods, irrespective of City’s failure to notify Supplier of a rejection of nonconforming goods or revocation of acceptance thereof or to specify with particularity any defect in nonconforming goods after rejection or acceptance thereof.

Section 4. WARRANTY.

A. Supplier warrants that the Goods will be of merchantable quality and free from defects in design, engineering, material, and workmanship for a period of two (2) years, or such longer period as provided by a manufacturer’s warranty or as agreed to by Supplier and City, from the date of final written acceptance of the Goods by City as required for final payment under Section 7. Supplier further warrants that any services provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.

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B. Supplier further warrants that all machinery, equipment, or process included in the Goods will meet the performance requirements and specifications specified in Exhibit “A” and shall be fit for the purpose intended. City’s inspection, testing, approval, or acceptance of any such machinery, equipment, or process will not relieve Supplier of its obligations under this Section 4.B.

C. For any breach of the warranties contained in Section 4.A and Section 4.B, Supplier will, immediately after receiving notice from City, at the option of City, and at Supplier’s own expense and without cost to City:

1. Repair the defective Goods;

2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or

3. Repay to City the purchase price of the defective Goods.

If City selects repair or replacement, any defects will be remedied without cost to City, including but not limited to, the costs of removal, repair, and replacement of the defective Goods, and reinstallation of new Goods. All such defective Goods that is so remedied will be similarly warranted as stated above. In addition, Supplier will repair or replace other items of the Goods which may have been damaged by such defects or the repairing of the same, all at its own expense and without cost to City.

D. Supplier also warrants that the Goods is free and clear of all liens and encumbrances whatsoever, that Supplier has a good and marketable title to same, and that Supplier owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Supplier agrees to indemnify, defend, and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.

E. In the event of a breach by Supplier of its obligations under this Section 4, City will not be limited to the remedies set forth in this Section 4, but will have all the rights and remedies permitted by applicable law, including without limitation, all of the rights and remedies afforded to City under the California Commercial Code.

Section 5. PRICES.

Unless expressly provided otherwise, all prices and fees specified in Exhibit “C,” attached hereto and incorporated herein by reference, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind will be allowed unless specifically agreed to in writing by City’s authorized representative. The total price shall include (i) all federal, state and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Goods furnished to City hereunder; and (ii) all charges for packing, freight and transportation to destination.

Section 6. CHANGES.

City, at any time, by a written order, and without notice to any surety, may make changes in the Goods, including but not limited to, City’s requirements and specifications. If such changes affect the cost of the Goods or time required for its performance, an equitable adjustment will be made in the price or time for performance or both. Any change in the price necessitated by such change will be agreed upon between City and Supplier and such change will be authorized by a change order document signed by City and accepted by Supplier.

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Section 7. PAYMENTS.

A. Terms of payment are net thirty (30) days, less any applicable retention, after receipt of invoice, or completion of applicable Progress Milestones. Final payment shall be made by City after Supplier has satisfied all contractual requirements. Payment of invoices shall not constitute acceptance of Goods.

B. If Progress Milestones have been specified in Exhibit “B,” then payments for the Goods will be made as the requirements of such Progress Milestones are met. Progress payments for the Goods will be made by City upon proper application by Supplier during the progress of the Goods and according to the terms of payment as specified in Exhibit “B.” Supplier’s progress billing invoice will include progress payments due for the original scope of work and changes. Each “Item for Payment” shown in Exhibit “B” and each change order will be itemized on the invoice. Invoices for cost plus work, whether part of Exhibit “B” or a change order, must have subcontractor and/or supplier invoices attached to Supplier’s invoice.

Other format and support documents for invoices will be determined by City in advance of the first invoice cycle.

C. Payments otherwise due may be withheld by City on account of defective Goods not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens or other claims, failure of Supplier to make payments properly to its subcontractors or for material or labor, the failure of Supplier to perform any of its other obligations under the Agreement, or to protect City against any liability arising out of Supplier’s failure to pay or discharge other obligations. If the causes for which payment is withheld are removed, the withheld payments will be made promptly. If the said causes are not removed within a reasonable period after written notice, City may remove them at Supplier’s expense.

D. Payment of the final Progress Milestone payment or any retention will be made by City upon:

1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the Progress Milestone;

2. Written acceptance of the Goods by City;

3. Delivery of all drawings and specifications, if required by City;

4. Delivery of executed full releases of any and all liens arising out of this Agreement; and

5. Delivery of an affidavit listing all persons who might otherwise be entitled to file, claim, or maintain a lien of any kind or character, and containing an averment that all of the said persons have been paid in full.

If any person refuses to furnish an actual release or receipt in full, Supplier may furnish a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.

E. Acceptance by Supplier of payment of the final Progress Milestone payment pursuant to Section 7.D will constitute a waiver, release and discharge of any and all claims and demands of any kind or character which Supplier then has, or can subsequently acquire against City, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement. However, payment for the final Progress Milestone by City will not constitute a waiver, release or discharge of any claims or demands which City then has, or can subsequently acquire, against Supplier, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement.

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Section 8. SCHEDULE FOR DELIVERY.

A. The time of Supplier’s performance is of the essence for this Agreement. The Goods will be delivered in accordance with the schedule set forth in Exhibit “B.” Supplier must immediately notify City in writing any time delivery is behind schedule or may not be completed on schedule. In addition to any other rights City may have under this Agreement or at law, Supplier shall pay City the sum of 10 % of the purchase cost per item of Goods for each calendar day for which the item of Goods is unavailable beyond the scheduled delivery date(s) specified in Exhibit “B.”
B. In the event that the Goods is part of a larger project or projects that require the coordination of multiple contractors or suppliers, then Supplier will fully cooperate in scheduling the delivery so that City can maximize the efficient completion of such project(s).

Section 9. TAXES.

A. Supplier’s payment of sales and use tax is not required for due to the following:

1. Supplier is not installing the equipment; installation is being performed by a 3 rd party.

2. The city is responsible for the cost of removal equipment and re-installation cost.

3. Tactical Support Equipment (TSE) will cover cost of shipping equipment back if any repairs are required.

Section 10. INDEPENDENT CONTRACTOR.

Supplier enters into this Agreement as an independent contractor and not as an employee of City.

Supplier shall have no power or authority by this Agreement to bind City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Supplier are employees, agents, contractors or subcontractors of the Supplier and not of City. City shall not be obligated in any way to pay any wage claims or other claims made against Supplier by any such employees, agents, contractors or subcontractors or any other person resulting from performance of this Agreement.

Section 11. SUBCONTRACTS.

Unless otherwise specified, Supplier must obtain City’s written permission before subcontracting any portion of the Goods. Except for the insurance requirements in Section 13.A, all subcontracts and orders for the purchase or rental of supplies, materials or equipment, or any other part of the Goods, will require that the subcontractor be bound by and subject to all of the terms and conditions of the Agreement. No subcontract or order will relieve Supplier from its obligations to City, including, but not limited to Supplier’s insurance and indemnification obligations. No subcontract or order will bind City.

Section 12. TITLE AND RISK OF LOSS.

Notwithstanding the foregoing, in the event that the City has paid Supplier for all or a portion of the Goods

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which remains in the possession of Supplier, then City shall have title to, and the right to take possession of, such Goods at any time following payment therefor. Risk of loss for any Goods which remains in the possession of Supplier shall remain with Supplier until such Goods has been delivered or City has taken possession thereof. Supplier will have risk of loss or damage to Supplier’s property used in the construction of the Goods but which does not become a part of the Goods.

Section 13. INDEMNIFICATION.

A. Supplier shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence or willful misconduct of Supplier, its officials, officers, employees, agents, subcontractors and subconsultants arising out of or in connection with the Goods or the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses except such loss or damage which was caused by the sole negligence or willful misconduct of the City.

B. Supplier’s defense obligation for any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, employees, agents, or volunteers shall be at Supplier’s own cost, expense, and risk. Supplier shall pay and satisfy any judgment, award, or decree that may be rendered against City or its officials, officers, employees, agents, or volunteers, in any such suit, action, or other legal proceeding. Supplier shall reimburse City and its officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided.

C. Supplier’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers.

Section 14. INSURANCE.

A. General. Supplier shall take out and maintain:

1. Commercial General Liability Insurance, of at least $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01;

2. Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, of at least $1,000,000 per accident for bodily injury and property damage, at least as broad as most recent Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto);

3. Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and

4. Pollution Liability Insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate shall be provided by the Supplier if transporting hazardous materials.

5. If Supplier is also the manufacturer of any equipment included in the Goods, Supplier shall carry Product Liability and/or Errors and Omissions Insurance which covers said equipment with limits of not less than $1,000,000.

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6. Privacy/Network Security (Cyber Liability), of at least $1,000,000 per occurrence and aggregate for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to the City.

B. Additional Insured; Primary; Waiver of Subrogation; No Limitation on Coverage. The policies required under this Section shall give City, its officials, officers, employees, agents or volunteers additional insured status. Such policies shall contain a provision stating that Supplier’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any additional insureds shall not be called upon to contribute to any loss, and shall contain or be endorsed with a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as additional insured pursuant to this Agreement.

C. Insurance Carrier. All insurance required under this Section is to be placed with insurers with a current A.M. Best’s rating no less than A-:VII, licensed to do business in California, and satisfactory to the City.

D. Evidence of Insurance. Supplier shall furnish City with original certificates of insurance and endorsements effecting coverage required by the Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before delivery commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

E. Subcontractors. All subcontractors shall meet the requirements of this Section before commencing work. In addition, Supplier shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.

F. Freight. Supplier shall ensure that third party shippers contracted by Supplier have adequate insurance coverage for the shipped Goods.

Section 15. LIENS.

A. Supplier, subcontractors and suppliers will not make, file or maintain a mechanic’s or other lien or claim of any kind or character against the Goods, for or on account of any labor, materials, fixtures, tools, machinery, equipment, or any other things furnished, or any other work done or performance given under, arising out of, or in any manner connected with the Agreement (such liens or claims referred to as “Claims”); and Supplier, subcontractor and suppliers expressly waive and relinquish any and all rights which they now have, or may subsequently acquire, to file or maintain any Claim and Supplier, subcontractor and suppliers agree that this provision waiving the right of Claims will be an independent covenant.

B. Supplier will save and hold City harmless from and against any and all Claims that may be filed by a subcontractor, supplier or any other person or entity and Supplier will, at its own expense, defend any and all actions based upon such Claims and will pay all charges of attorneys and all costs and other expenses arising from such Claims.

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Section 16. TERMINATION OF AGREEMENT BY CITY.

A. Should Supplier at any time refuse or fail to deliver the Goods with promptness and diligence, or to perform any of its other obligations under the Agreement, City may terminate Supplier’s right to proceed with the delivery of the Goods by written notice to Supplier. In such event City may obtain the Goods by whatever method it may deem expedient, including the hiring of another contractor or other contractors and, for that purpose, may take possession of all materials, machinery, equipment, tools and appliances and exercise all rights, options and privileges of Supplier. In such case Supplier will not be entitled to receive any further payments until the Goods is delivered. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Agreement, Supplier will be liable for and will pay the difference to City.

B. City may, for its own convenience, terminate Supplier’s right to proceed with the delivery of any portion or all of the Goods by written notice to Supplier. Such termination will be effective in the manner specified in such notice, will be without prejudice to any claims which City may have against Supplier, and will not affect the obligations and duties of Supplier under the Agreement with respect to portions of the Goods not terminated.

C. On receipt of notice under Section 16.B, Supplier will, with respect to the portion of the Goods terminated, unless the notice states otherwise,

1. Immediately discontinue such portion of the Goods and the placing of orders for materials, facilities, and supplies in connection with the Goods,

2. Unless otherwise directed by City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and

3. Deliver only such portions of the Goods which City deems necessary to preserve and protect those portions of the Goods already in progress and to protect material, plant and equipment at the Goods site or in transit to the Goods site.

D. Upon termination pursuant to Section 16.B, Supplier will be paid a pro rata portion of the compensation in the Agreement for any portion of the terminated Goods already delivered, including material and services for which it has made firm contracts which are not canceled, it being understood that City will be entitled to such material and services. Upon determination of the amount of said pro rata compensation, City will promptly pay such amount to Supplier upon delivery by Supplier of the releases of liens and affidavit, pursuant to Section 7.C.

Section 17. FORCE MAJEURE
A. Supplier shall not be held responsible for failure or delay in shipping nor City for failure or delay in accepting goods described herein if such failure or delay is due to a Force Majeure Event.

B. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Supplier and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For

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purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

C. In the event of any such excused interference with shipments, City shall have the option either to reduce the quantity provided for in the order accordingly or to exercise its right of cancellation as set forth in this Agreement.

Section 18. MISCELLANEOUS PROVISIONS.

A. Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address or at such other address as the respective parties may provide in writing for this purpose:

CITY:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Michele Mahan, Lieutenant
With Copy To:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
Tactical Support Equipment:
4039 Barefoot Rd
Fayetteville, NC. 28306
Attn: Carl Beene, President
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

B. Assignment or Transfer. Supplier shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of the City, which will not be unreasonably withheld. Provided, however, that claims for money due or to become due Supplier from the City under this Agreement may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer, whether voluntary or involuntary, shall be furnished promptly to the City.

C. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.

D. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

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E. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.

F. Governing Law. This Agreement shall be governed by the laws of the State of California.

Venue shall be in San Bernardino County.

G. Attorneys’ Fees and Costs. If any action in law or equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, each Party shall pay its own attorneys’ fees.

H. Interpretation. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party.

I. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

J. Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agreement and bind each respective Party.

K. Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

L. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

M. City’s Right to Employ Other Suppliers. City reserves its right to employ other contractors in connection with the Goods.

N. Entire Agreement. This Agreement constitutes the entire agreement between the Parties relative to the Goods specified herein. There are no understandings, agreements, conditions, representations, warranties or promises with respect to this Agreement, except those contained in or referred to in the writing.

O. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. [SIGNATURES ON FOLLOWING PAGE]

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SIGNATURE PAGE TO GOODS PURCHASE AGREEMENT

BETWEEN THE CITY OF SAN BERNARDINO

AND TACTICAL SUPPORT EQUIPMENT
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written.

CITY OF SAN BERNARDINO
APPROVED BY:

Charles E McNeely
Interim City Manager
ATTESTED BY:

Genoveva Rocha
City Clerk
APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney

TACTICAL SUPPORT EQUIPMENT
Signature
Name
Title

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Exhibit A
Goods Specifications
A.Background
The City of San Bernardino Police Department is a full-service law enforcement agency that provides policing services to over 217,000 residents and covers 62 square miles. The Police Department provides both patrol and investigative services to the community. Some of the specialty investigative services are performed by personnel assigned to the Special Enforcement Bureau, Homicide Unit, and Crimes against Persons Unit. The members of these units are highly trained and conduct complex investigations into incidents involving homicides, major assaults, human trafficking, kidnapping, child abuse, and rape.

The City of San Bernardino has historically been identified as suffering from a high violent crime rate. In an effort to better respond to the problem of violent crime, the Department constantly seeks new methods or technological solutions to improve policing services and investigative outcomes. The Police Department is currently seeking cell site simulation technology in an effort to improve investigative outcomes and give law enforcement personnel equipment that will aid in the quick apprehension of suspects involved in violent criminal behavior.

Requirements

1. Main Base Station:

The main base station must allow authorized investigators the ability to locate cellular devices after a search warrant or a court order has been issued for the use of the device in compliance with California State law.

The main base station must provide a direct finding component and software along with including all of the necessary power amplification, filtering, cabling, antennas, and mounting/rack systems required for the correct installation and function of the equipment and offer a means of protection for the device. The base station device must be capable of transmitting on a minimum of eight frequency bands simultaneously, and any combination of technologies, with the ability to add additional frequencies if needed.

The main base station must also have a mobile workstation capable of displaying and rendering maps. This workstation must be wired via USB and/or Ethernet cables to the device itself, provide wireless connectivity (wireless card), have and advanced video graphic card, and a backlit keyboard function to operate during low light situations. The workstation must also have a platform that will allow it to be mounted into a vehicle.

All features must operate in conjunction with the primary system and provide accurate, real time, locations of the target cellular device without manipulation of the device. To allow investigators to locate the target device and location, the system’s direct finding components and software must work with the main base station and provide a direction of the targeted device in relation to the primary device.

The workstation (computer) must be powerful enough to accommodate having multiple programs open and used at any one time without crashing or requiring an unscheduled restart of the system. These programs will include mapping software, user GUI for the high-power base station, internet browsers for email updates, and the direct find software.

2. Secondary Portable System:

They system must also include a secondary, handheld, portable device to act in conjunction with the main base station. This device should aid in direction finding of cellular devices and include the appropriate mapping and control software. This device should also include a display device loaded with direction finding software.

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3. Training:

Should include the cost of training up to five members of the police department in the use of both the main base station and the secondary portable system.

4. Performance Bond:

Must include the cost of a performance bond.

5. 5G:

The devices must be equipped to operate in both 4G and 5G bandwidths.

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Exhibit B
Delivery Schedule
Location:

San Bernardino Police Department
710 N D Street
San Bernardino CA 92401
All deliveries should be made Monday through Thursday
between the hours of 7:00 a.m. to 5:00 p.m.

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/ No
Exhibit C
Fee Schedule
VENDOR NAME: Tactical Support Equipment, Inc
ADDRESS: 4029 Barefoot Road Fayetteville, NC 28306
PHONE: 910-425-3360
The undersigned, hereby declare that they have carefully examined the location of the proposed work, familiarized themselves with the local conditions affecting the cost of the work, and have read and examined the terms and conditions for the following Project:

CELLULAR SITE SIMULATOR
The undersigned, hereby propose to furnish all labor, materials, equipment, tools, transportation, and services, and to discharge all duties and obligations necessary and required to perform and complete the Project in strict accordance with the Vendor Price List for the ELECTRONICALLY SUBMITTED TOTAL VENDOR PRICE LIST.

Item No. Description Quantity Unit Cost Total Amount
1 Main Base Station Cost 1 $360,000.00 $360,000.00
2 Secondary Portable Device Cost 1 Included Included
3 5G Capability Cost 1 $252,000.00 $252,000.00
4 Training Cost 1 Included Included
5 Annual Maintenance/Subscription Fees 3 years
included
0 0
6 Performance Bond 1 $75,000.00 $75,000.00
7 Additional Costs (Explain in attachment)
8 Taxes (8.75%) – Taxes are to be paid by the
City of San Bernardino and not included in
the total vendor price.
1 $60,112.50 $0
TOTAL VENDOR PRICE $687,000.00
Total Number of Additional Pages: 0
Are there any other additional or incidental costs, which will be required by your firm in order to meet the requirements of the Technical Specifications? Yes
If you answered “Yes,” please provide detail of said additional costs:
(circle one)

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1 Please indicate any elements of the Technical Specifications that cannot be met by your firm.

Given the fact that TSE is not installing the equipment, and this is being performed by a 3rd party, the customer will be responsible for any costs associated with the removal of the equipment and re-installation costs. TSE will cover the cost of shipping the gear back for repair.

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Resolution No. 2022-239
Resolution 2022-239
November 16, 2022

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RESOLUTION NO. 2022-239

RESOLUTION OF THE MAYOR AND CITY COUNCIL OF

THE CITY OF SAN BERNARDINO, CALIFORNIA,

APPROVING THE CELLULAR SITE SIMULATOR USAGE

AND PRIVACY POLICY AND AUTHORIZING THE

AGENCY DIRECTOR OF ADMINISTRATIVE SERVICES
TO AMEND THE ADOPTED FY2022/2024 BUDGET BY
$460,000, AND ISSUE A PURCHASE ORDER TO TACTICAL

SUPPORT EQUIPMENT IN AN AMOUNT NOT TO
EXCEED $860,000.

WHEREAS, the City of San Bernardino was awarded $425,000 in grant funds for the FY2020 Urban Area Security Initiative Grant; and
WHEREAS, the City proposed and received approval to use $400,000 of the Urban Area Security Initiative grant funds for the purchase of a cellular site simulator in support of the goal of preparing for, preventing, and responding to security threats to the region; and WHEREAS, RFQ F-22-73 was issued requesting bids for the purchase of cellular site simulator technology and the winning bidder was Tactical Support Equipment, at a cost of $848,786; and
WHEREAS, there are sufficient funds in the Asset Forfeiture Fund to supply the remaining balance and contingency of $460,000 and complete the purchase; and WHEREAS, the Police Department has created a written policy that will serve as a guide regarding the proper circumstances and requirements for use of cellular site simulator equipment.

BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:

SECTION 1.The above recitals are true and correct and are incorporated herein by this reference.

SECTION 2. The City Manager is hereby authorized to execute a goods purchase agreement, attached hereto as Exhibit “A,” between Tactical Support Equipment and the City of San Bernardino.

SECTION 3.The Agency Director of Administrative Services is authorized to amend the Adopted FY2022/2024 budget by $460,000 and issue a purchase order to Tactical Support Equipment in an amount not to exceed $860,000.

SECTION 4. The Cellular Site Simulator Usage and Privacy Policy is adopted as the guiding policy regarding the use of cellular site simulator equipment by police personnel.

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Resolution No. 2022-239
Resolution 2022-239
November 16, 2022

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SECTION 5.The Mayor and City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.

SECTION 7. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 16th day of November 2022.

John Valdivia, Mayor
City of San Bernardino
Attest:

Genoveva Rocha, CMC, City Clerk
Approved as to form:

Sonia Carvalho, City Attorney

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Resolution No. 2022-239
Resolution 2022-239
November 16, 2022

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CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss

CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2022-239, adopted at a regular meeting held on the 16th day of November 2022 by the following vote:

Genoveva Rocha, CMC, City Clerk

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1 CITY OF SAN BERNARDINO

GOODS PURCHASE AGREEMENT
This Goods Purchase Agreement (“Agreement”) is entered into this _____ day of __________, 2022, by and between the City of San Bernardino, a charter city and municipal corporation organized under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401, County of San Bernardino, State of California (“City”), and Tactical Support Equipment Incorporated, a North Carolina corporation with its principal place of business at 4039 Barefoot Rd, Fayetteville, NC 28306 (“Supplier”). City and Supplier are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

Section 1. DEFINITIONS.

When Exhibit “A” specifies machinery, equipment or material by manufacturer, model or trade name, no substitution will be made without City’s written approval.

Machinery, equipment or material installed in the Goods without the approval required by this Section 2 will be deemed to be defective material for purposes of Section 4. Where machinery, equipment or materials are referred to in Exhibit “A” as equal to any particular standard, City will decide the question of equality. When requested by City, Supplier will furnish City with the name of the manufacturer, the performance capabilities and other pertinent information necessary to properly determine the quality and suitability of any machines, equipment and material to be incorporated in the Goods. Material samples will be submitted at City’s request.

Section 3. INSPECTIONS AND TESTS.

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2 rejection or acceptance thereof.

Section 4. WARRANTY.

A. Supplier warrants that the Goods will be of merchantable quality and free from defects in design, engineering, material, and workmanship for a period of two (2) years, or such longer period as provided by a manufacturer’s vehicle warranty or as agreed to by Supplier and City, from the date of final written acceptance of the Goods by City as required for final payment under Section 7. Supplier further warrants that any services provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.

1. Repair the defective Goods;

2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or

3. Repay to City the purchase price of the defective Goods.

E. In the event of a breach by Supplier of its obligations under this Section 4, City will not be limited to the remedies set forth in this Section 4, but will have all the rights

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3 and remedies permitted by applicable law, including without limitation, all of the rights and remedies afforded to City under the California Commercial Code.

Section 5. PRICES.

Unless expressly provided otherwise, all prices and fees specified in Exhibit “B,” attached hereto and incorporated herein by reference, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind will be allowed unless specifically agreed to in writing by City’s authorized representative. The total price shall include (i) all federal, state and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Goods furnished to City hereunder; and (ii) all charges for packing, freight and transportation to destination.

Section 6. CHANGES.

City, at any time, by a written order, and without notice to any surety, may make changes in the Goods, including but not limited to, City’s requirements and specifications.

If such changes affect the cost of the Goods or time required for its performance, an equitable adjustment will be made in the price or time for performance or both. Any change in the price necessitated by such change will be agreed upon between City and Supplier and such change will be authorized by a change order document signed by City and accepted by Supplier.

Section 7. PAYMENTS.

A. Terms of payment, are net thirty (30) days, less any applicable retention, after receipt of invoice, or completion of applicable Progress Milestones. Final payment shall be made by City after Supplier has satisfied all contractual requirements. Payment of invoices shall not constitute acceptance of Goods.

B. If Progress Milestones have been specified in Exhibit “B,” then payments for the Goods will be made as the requirements of such Progress Milestones are met.

Progress payments for the Goods will be made by City upon proper application by Supplier during the progress of the Goods and according to the terms of payment as specified in Exhibit “B.” Supplier’s progress billing invoice will include progress payments due for the original scope of work and changes. Each “Item for Payment” shown in Exhibit “B” and each change order will be itemized on the invoice. Invoices for cost plus work, whether part of Exhibit “B” or a change order, must have subcontractor and/or supplier invoices attached to Supplier’s invoice. Other format and support documents for invoices will be determined by City in advance of the first invoice cycle.

C. Payments otherwise due may be withheld by City on account of defective Goods not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens or other claims, failure of Supplier to make payments properly to its subcontractors or for material or labor, the failure of Supplier to perform any of its other obligations under the Agreement, or to protect City against any liability arising out of Supplier’s failure to pay or discharge taxes or other obligations. If the causes for which

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4 payment is withheld are removed, the withheld payments will be made promptly. If the said causes are not removed within a reasonable period after written notice, City may remove them at Supplier’s expense.

D. Payment of the final Progress Milestone payment or any retention will be made by City upon:

1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the Progress Milestone;

2. Written acceptance of the Goods by City;

3. Delivery of all drawings and specifications, if required by City;

4. Delivery of executed full releases of any and all liens arising out of this Agreement; and

If any person refuses to furnish an actual release or receipt in full, Supplier may furnish a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.

Section 8. SCHEDULE FOR DELIVERY.

A. The time of Supplier’s performance is of the essence for this Agreement.

The Goods will be delivered in accordance with the schedule set forth in Exhibit “B.” Supplier must immediately notify City in writing any time delivery is behind schedule or may not be completed on schedule.

B. In the event that the Goods is part of a larger project or projects that require the coordination of multiple contractors or suppliers, then Supplier will fully cooperate in

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5 scheduling the delivery so that City can maximize the efficient completion of such project(s).

Section 9. TAXES.

A. Supplier agrees to timely pay all sales and use tax (including any value added or gross receipts tax imposed similar to a sales and use tax) imposed by any federal, state or local taxing authority on the ultimate purchase price of the Goods provided under this Agreement.

B. Supplier will withhold, and require its subcontractors, where applicable, to withhold all required taxes and contributions of any federal, state or local taxing authority which is measured by wages, salaries or other remuneration of its employees or the employees of its subcontractors. Supplier will deposit, or cause to be deposited, in a timely manner with the appropriate taxing authorities all amounts required to be withheld.

C. All other taxes, however denominated or measured, imposed upon the price of the Goods provided hereunder, will be the responsibility of Supplier. In addition, all taxes assessed by any taxing jurisdiction based on Supplier property used or consumed in the provision of the Goods such as and including ad valorem, use, personal property and inventory taxes will be the responsibility of Supplier.

D. Supplier will, upon written request, submit to City written evidence of any filings or payments of all taxes required to be paid by Supplier hereunder.

Section 10. INDEPENDENT CONTRACTOR.

Supplier enters into this Agreement as an independent contractor and not as an employee of City. Supplier shall have no power or authority by this Agreement to bind City in any respect. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Supplier are employees, agents, contractors or subcontractors of the Supplier and not of City. City shall not be obligated in any way to pay any wage claims or other claims made against Supplier by any such employees, agents, contractors or subcontractors or any other person resulting from performance of this Agreement.

Section 11. SUBCONTRACTS.

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6 Section 12. TITLE AND RISK OF LOSS.

Unless otherwise agreed, City will have title to, and risk of loss of, all completed and partially completed portions of the Goods upon delivery, as well as materials delivered to and stored on City property which are intended to become a part of the Goods. However, Supplier will be liable for any loss or damage to the Goods and/or the materials caused by Supplier or its subcontractors, their agents or employees, and Supplier will replace or repair said Goods or materials at its own cost to the complete satisfaction of City. Notwithstanding the foregoing, in the event that the City has paid Supplier for all or a portion of the Goods which remains in the possession of Supplier, then City shall have title to, and the right to take possession of, such Goods at any time following payment therefor. Risk of loss for any Goods which remains in the possession of Supplier shall remain with Supplier until such Goods has been delivered or City has taken possession thereof. Supplier will have risk of loss or damage to Supplier’s property used in the construction of the Goods but which does not become a part of the Goods.

Section 13. INDEMNIFICATION.

C. Supplier’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers.

Section 14. INSURANCE.

A. General. Supplier shall take out and maintain:

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7 1. Commercial General Liability Insurance, of at least $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01;

3. Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and

4. Pollution Liability Insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate shall be provided by the Supplier if transporting hazardous materials.

B. Additional Insured; Primary; Waiver of Subrogation; No Limitation on Coverage. The policies required under this Section shall give City, its officials, officers, employees, agents or volunteers additional insured status. Such policies shall contain a provision stating that Supplier’s policy is primary insurance and that any insurance, self- insurance or other coverage maintained by the City or any additional insureds shall not be called upon to contribute to any loss, and shall contain or be endorsed with a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as additional insured pursuant to this Agreement.

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8 D. Evidence of Insurance. Supplier shall furnish City with original certificates of insurance and endorsements effecting coverage required by the Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before delivery commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

F. Freight. Supplier shall ensure that third party shippers contracted by Supplier have adequate insurance coverage for the shipped Goods.

Section 15. LIENS.

Section 16. TERMINATION OF AGREEMENT BY CITY.

If City’s cost of obtaining the Goods, including compensation for additional managerial

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9 and administrative services, will exceed the unpaid balance of the Agreement, Supplier will be liable for and will pay the difference to City.

C. On receipt of notice under Section 16.B, Supplier will, with respect to the portion of the Goods terminated, unless the notice states otherwise,

1. Immediately discontinue such portion of the Goods and the placing of orders for materials, facilities, and supplies in connection with the Goods,

2. Unless otherwise directed by City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and

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10 thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

Section 18. MISCELLANEOUS PROVISIONS.

CITY:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Lieutenant Michele Mahan
With Copy To:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
SUPPLIER:

Tactical Support Equipment Inc.
4039 Barefoot Road
Fayetteville, NC 28306
Attn: Carl Beene
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

Notice of any assignment or transfer, whether voluntary or involuntary, shall be furnished promptly to the City.

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11 C. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.

D. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

F. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

I. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

L. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

M. City’s Right to Employ Other Suppliers. City reserves its right to employ other contractors in connection with the Goods.

O. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered

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12 as an original signature for all purposes and shall have the same force and effect as an original signature
P. Federal Requirements. When funding for the Goods is provided, in whole or in part, by an agency of the federal government, Supplier shall also fully and adequately comply with the provisions included in Exhibit “D”, attached hereto and incorporated herein by reference (the “Federal Requirements”). With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON FOLLOWING PAGE]

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13 SIGNATURE PAGE TO GOODS PURCHASE AGREEMENT

BETWEEN THE CITY OF SAN BERNARDINO

AND TACTICAL SUPPORT EQUIPMENT INC
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written.

CITY OF SAN BERNARDINO
APPROVED BY:

Robert D. Field
City Manager
ATTESTED BY:

Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney

SUPPLIER

TACTICAL SUPPORT EQUIPMENT
INC.

Signature
Name
Title

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14 Exhibit A
Goods Specifications
[ATTACHED]

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15 Exhibit B
Delivery Schedule
Equipment shall be delivered to the San Bernardino Police Department at 710 N. D Street, San Bernardino, CA 92401 within 180 days of issuance of a purchase order.

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16 Exhibit C
Fee Schedule
[ATTACHED]

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17 Exhibit D
Federal Requirements
In addition to the terms and conditions outlined by the Agreement, Supplier must comply with the following:

1. Supplier must comply with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor."

2. Supplier shall comply with the with the Davis-Bacon Act (40 U.S.C. 276a to 276a- 7) as supplemented by Department of Labor regulations (29 CFR Part 5).

3. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Supplier must comply with the Copeland “Anti-Kickback” Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR Part 3, “Suppliers and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The City shall report all suspected or reported violations to the responsible federal contracting officer.

4. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) — If applicable, Supplier must comply with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327–333), as supplemented by Department of Labor regulations (29 CFR Part 5). Under Section 102 of the Act, each Supplier is required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 11/2 times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic is required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

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18 5. Rights to Inventions Made Under a Contract or Agreement —If the Federal award meets the definition of "funding agreement" under 37 CFR § 401.2 (a) and the Supplier wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency.

6. Clean Air Act (42 U.S.C. 7401 et seq.), Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15), as amended — Supplier shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (41 U.S.C. 7401 et seq. ), Federal Water Pollution Control Act (33 U.S.C. 1251 et seq. ), Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15), as amended. City will report violations to the responsible federal contracting officer and the Regional Office of the Environmental Protection Agency (EPA).

7. Supplier must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

8. Debarment and Suspension (Executive Orders 12549 and 12689) — Contract awards shall not be made to parties listed on nonprocurement portion of the General Services Administration's Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs in accordance with Executive Orders 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235),“Debarment and Suspension.” This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than Executive Order 12549. Suppliers with awards that exceed the small purchase threshold

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19 must provide the required certification regarding its exclusion status and that of its principals.

9. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) — Supplier shall comply with the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Under the Amendment each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C.1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the City.

10.Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment — Supplier is prohibited from: (1) Procuring or obtaining; (2) extending or renewing a contract to procure or obtain; or (3) entering into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, this prohibition also extends to video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities) as well as telecommunications or video surveillance services provided by such entities or using such equipment. In addition, this prohibition also extends to telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

11.Domestic Preference — As appropriate and to the extent consistent with law, the Supplier shall, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). For purposes of this section: (1) "Produced in the United States" means, for iron and steel products, that all manufacturing processes, from the initial melting stage through

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20 the application of coatings, occurred in the United States and (2) "Manufactured products" means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: August 16, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager;
Daniel Hernandez, Agency Director of Public Works,
Operations, and Maintenance
Department: Public Works
Subject: Award Design Services Agreement for Sierra Way Storm Drain Project (Ward 7)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, approve the award of a Design Services Agreement with Ludwig Engineering Associates, Inc. in the negotiated amount of $179,820 for the Sierra Way Storm Drain Project.

Executive Summary
This is a design service agreement with Ludwig Engineering Associates to develop plans, specifications, and engineer’s estimate for the construction of Sierra Way Storm Drain System. The proposed Sierra Way Storm Drain Project is to capture surface runoff from the street, reduce potential flooding and improve traffic safety during rainy weather. The approved budget for the entire project (including construction) is $3,965,209, allocated in the Storm Drain Construction Fund.

Background
The Public Works Department is responsible for maintaining the citywide storm drain system. The existing drainage conditions for Sierra Way from 31st Street to 40th Street reflect a general flow of surface water southerly with four existing catch basins on Sierra Way at 31st Street.

On June 1, 2022, the Mayor and City Council approved Resolution No. 2022-102 adopting the City’s Annual Operating and Capital Budget for Fiscal Year 2022/23.

The budget included a capital project for the Sierra Way Storm Drain (“Project”).

Funding to support the Project was established in the amount of $3,965,209.

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Staff solicited professional design services to prepare project plans, specifications, and estimates (a bid package), hydrology and hydraulic analysis, utility research, a design survey, traffic control/detour plans, acquisition of County of San Bernardino encroachment permits, environmental clearance, geotechnical investigations, pavement rehabilitation, utility coordination, agency coordination, and post design services (pre-bid meeting attendance and response to RFI). Award of these professional design services is the next step to move forward with the implementation of this project.

Discussion
As there is currently no drainage system in Sierra Way, during rain events the catch basins overflow and the road itself becomes the drainage system. During major rain events, the water level in the street increases significantly and can reach levels that are potentially unsafe for driving.

The new proposed drainage line will be attached to an existing storm drain line, at a junction located at or around the vicinity of Sierra Way and 31st intersection. Storm drain improvements serve the task of carrying rainfall and runoff water away from the street helping to prevent surface flooding.

The proposed improvements will impact jurisdictional drainage areas. A permit will be required from San Bernardino County Flood Control District to connect to the existing storm drain line on Sierra Way at 31st Street.

On October 3, 2022, a Request for Proposals (RFP) for design services was released on the City’s website. On November 10, 2022, eleven proposals were received by the following firms:

Firm Location
Ludwig Engineering Associates, Inc. San Bernardino, CA
Onward Engineering Anaheim, CA
Michael Baker International Ontario, CA
TKE Engineering, Inc. Riverside, CA
Infrastructure Engineers Brea, CA
Kimley Horn Riverside, CA
Albert A. Webb Associates Riverside, CA
BKF Engineers Newport Beach, CA
Kabbara Engineering Santa Ana, CA
Engineering Resources of Southern
California Redlands, CA
J. Smith T. Muli, Inc. San Juan Capistrano, CA

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Due to various reasons including staff transition, there was a delay in reviewing and selecting a consultant for the design of the project.

The proposal by Ludwig Engineering Associates, Inc. was reviewed in conformance with RFP requirements, including firm experience, project personnel qualifications, experience in dealing with firm, depth of understanding the project requirements and completeness of information submitted. All firms presented good proposals, but Ludwig Engineering Associates, Inc., a local City of San Bernardino Consultant was selected as they received superior ratings in the areas of related experience, adequacy of staff, completion schedule, depth of understanding, and project approach. Ludwig Engineering, Inc. has extensive experience and successfully completed similar projects for numerous cities statewide and for the City of San Bernardino.

Staff determined that the proposal from Ludwig Engineering Associates, Inc. demonstrates the capability to provide design services for Sierra Way Storm Drain.

Staff negotiated the proposed scope and fees for the project with Ludwig Engineering, Inc. for $179,820. As previously discussed, $3,965,209 was allocated in the Storm Drain Construction Fund for this Project. Staff recommends approval of the award of a design services agreement with Ludwig Engineering, Inc. in the negotiated amount of $179,820 for the improvements of the Sierra Way Storm Drain.

Work shall be completed within 8 months of the Notice to Proceed. 2021-2025 Strategic Targets and Goals
This project is consistent with Key Target No.4: Economic Growth & Development.

Completion of this project will result in public improvements, being constructed that minimize risk and litigation exposure through improving the City’s infrastructure.

Fiscal Impact
There is no General Fund impact associated with this action. Project budget for the proposed work was previously established through approved Storm Drain Construction Fund No. 248 as part of the FY 2022/23 Annual Operating and Capital Budget in the amount of $3,965,209.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager to execute a Design Services Agreement with Ludwig Engineering Associates, Inc. in the negotiated amount of $179,820 for the Sierra Way Storm Drain Project.

Attachments
Attachment 1 Agreement with Ludwig Engineering Associates, Inc.

Attachment 2 Location Map

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Ward:

Seventh Ward
Synopsis of Previous Council Actions:

June 1, 2022 Mayor and City Council adopted Resolution No. 2022-102 approving Capital Improvement Program FY 2022/23.

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Exhibit B-1
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CITY OF SAN BERNARDINO

DESIGN SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into as August16, 2023, by and between the City of San Bernardino, a charter city and municipal corporation organized and operating under the laws of the State of California, with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401 (“City”), and Ludwig Engineering Associates, INC., a California Corporation with its principal place of business at 109 E. 3 rd Street, San Bernardino, California 92410 (hereinafter referred to as “Designer”). City and Designer are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

2.1City. City is a municipal corporation organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.

2.2Designer. Designer desires to perform and assume responsibility for the provision of certain professional design services required by the City on the terms and conditions set forth in this Agreement. Designer warrants that it is fully licensed, qualified, and willing to perform the services required by this Agreement; provided, however, that if Designer is a corporation or other organization, the Project Designer designated pursuant to Section 3.2, and not the Designer itself, shall be fully licensed to practice as an architect and/or engineer in the State of California.

2.3Project. City desires to engage Designer to render such services for the Sierra Way Storm Drain Improvement Project ("Project") as set forth in this Agreement.

3. TERMS

3.1 Employment of Designer.

3.1.1 Scope of Services. Designer promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional design and related services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (hereinafter referred to as “Services”). The Services are more particularly described throughout this Agreement, including Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by Designer shall be subject to the sole and discretionary approval of the City, which approval shall not be unreasonably withheld. Additionally, Designer shall comply with all Federal requirements applicable to the Services as set forth in Exhibit “A-I.”

3.1.2 Term. The term of this Agreement shall be from August 2, 2023, to June 30, 2024, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines.

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Exhibit B-2
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3.2 Project Designer; Key Personnel.

3.2.1 Project Designer. Designer shall name a specific individual to act as Project Designer, subject to the approval of City. Designer hereby designates Jeff Ashbaker, C.E. (License No. 91606) to act as the Project Designer for the Project. The Project Designer shall:
(1) maintain oversight of the Services; (2) have full authority to represent and act on behalf of the Designer for all purposes under this Agreement; (3) supervise and direct the Services using his or her best skill and attention; (4) be responsible for the means, methods, techniques, sequences and procedures used for the Services; (5) adequately coordinate all portions of the Services; and (6) act as principal contact with City and all contractors, consultants, engineers and inspectors on the Project. Any change in the Project Designer shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Project Designer shall be of at least equal competence as the prior Project Designer. In the event that City and Designer cannot agree as to the substitution of a new Project Designer, City shall be entitled to terminate this Agreement for cause.

3.2.2 Key Personnel. In addition to the Project Designer, Designer has represented to the City that certain additional key personnel, engineers and consultants will perform the Services under this Agreement. Should one or more of such personnel, engineers or consultants become unavailable, Designer may substitute others of at least equal competence upon written approval of the City. In the event that City and Designer cannot agree as to the substitution of key personnel, engineers or consultants, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel, engineers or consultants who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Designer at the request of the City. The key additional personnel, engineers and consultants for performance of this Agreement are as follows:

Glen Ludwig, R.C.E, LEA, Inc. President
Bruce Wilson, LEA, Inc. Project Manager
Jim Fry, P.E. P.L.S., LEA, Inc. Project Engineer
Michael Reyes, E.I.T, LEA, Inc. Project Engineer
Larry Callejas, LEA, Inc. Project Engineer
Todd Martinelli, LEA Inc., CADD
Tyler Denson, L.S.I.T, LEA Inc. Survey Supervisor
Black Gold Engineering, Inc., Field Surveying
C. Below, Potholing
DMI Digital Mapping, Aerial Mapping
Hilltop Geotechnical Consultant
Tom Dodson & Associates, Environmental Consultant

3.3 Hiring of Consultants and Personnel.

3.3.1 Right to Hire or Employ. Designer shall have the option, unless City objects in writing after notice, to employ at its expense architects, engineers, experts or other consultants qualified and licensed to render services in connection with the planning and/or administration of the Project, and to delegate to them such duties as Designer may delegate without relieving Designer from administrative or other responsibility under this Agreement. Designer shall be

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Exhibit B-3
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responsible for the coordination and cooperation of Designer’s architects, engineers, experts or other consultants. All consultants, including changes in consultants, shall be subject to approval by City in its sole and reasonable discretion. Designer shall notify City of the identity of all consultants at least fourteen (14) days prior to their commencement of work to allow City to review their qualifications and approve to their participation on the Project in its sole and reasonable discretion.

3.3.2 Qualification and License. All architects, engineers, experts and other consultants retained by Designer in performance of this Agreement shall be qualified to perform the Services assigned to them and shall be licensed to practice in their respective professions, where required by law.

3.3.3 Standards and Insurance. All architects, engineers, experts, and other consultants hired by Designer shall be required to meet all of the same standards and insurance requirements set forth in this Agreement, unless other standards or requirements are approved by the City in writing. Unless changes are approved in writing by the City, Designer’s agreements with its consultants shall contain a provision making them subject to all provisions stipulated in this Agreement.

3.3.4 Assignments or Staff Changes. Designer shall promptly obtain written City approval of any assignment, reassignment or replacement of such architects, engineers, experts, and consultants, or of other staff changes of key personnel working on the Project. As provided in the Agreement, any changes in Designer’s consultants and key personnel shall be subject to approval by City.

3.3.5 Draftsman and Clerical Support. Draftsmen and clerical personnel shall be retained by Designer at Designer’s sole expense.

3.4 Standard of Care.

3.4.1 Standard of Care. Designer shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the Services in the same discipline in the State of California, and shall be responsible to City for damages sustained by the City and delays to the Project as specified in the indemnification provision of this Agreement. Without limiting the foregoing, Designer shall be fully responsible to the City for any increased costs incurred by the City as a result of any such delays in the design or construction of the Project. Designer represents and maintains that it is skilled in the professional calling necessary to perform the Services. Designer warrants and represents that all of its employees, architects, engineers, experts and other consultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Designer represents that it, its employees, architects, engineers, experts and other consultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services assigned to or rendered by them and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Designer shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Designer’s failure to comply with the standard of care provided for herein.

3.4.2 Performance of Employees. Any employee or consultant who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely

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Exhibit B-4
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9 6
completion of the Project, a threat to the safety of persons or property, or any employee or consultant who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Designer and shall not be re-employed to perform any of the Services or to work on the Project.

3.5 Laws and Regulations.

3.5.1 Knowledge and Compliance. Designer shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in any manner affecting the performance of the Services or the Project, and shall give all notices required of the Designer by law. Designer shall be liable, pursuant to the standard of care and indemnification provisions of this Agreement, for all violations of such laws and regulations in connection with its Services. If the Designer performs any work knowing it to be contrary to such laws, rules and regulations, Designer shall be solely responsible for all costs arising therefrom.

Designer shall defend, indemnify and hold City, its officials, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.5.2 Drawings and Specifications. Designer shall cause all drawings and specifications to conform to any applicable requirements of federal, state, and local laws, rules and regulations, including the Uniform Building Code, in effect as of the time the drawings and specifications are prepared or revised during the latest phase of the Services described in Exhibit “A” attached hereto. Any significant revisions made necessary by changes in such laws, rules and regulations after this time may be compensated as Additional Services which were not known or reasonably should not have been known by Designer. Designer shall cause the necessary copies of such drawings and specifications to be filed with any governmental bodies with approval jurisdiction over the Project, in accordance with the Services described in Exhibit “A” attached hereto. For the preparation of all such drawings and specifications, the Designer shall use Computer Aided Design Drafting (“CADD”) (e.g., AutoCAD) or other technology acceptable to the Designer and City.

3.5.3 Americans with Disabilities Act. Designer will use its best professional efforts to interpret all applicable federal, state and local laws, rules and regulations with respect to access, including those of the Americans with Disabilities Act (“ADA”). Designer shall inform City of the existence of inconsistencies of which it is aware or reasonably should be aware between federal and state accessibility laws, rules and regulations, as well as any other issues which are subject to conflicting interpretations of the law and shall provide the City with its interpretation of such inconsistencies and conflicting interpretations. Unless Designer brings such inconsistencies and conflicting interpretations to the attention of the City and requests City’s direction on how to proceed, the Designer’s interpretation of such inconsistencies and conflicting interpretations shall be the sole responsibility and liability of Designer, and the Designer shall correct all plans, specifications and other documents prepared for the Project at no additional cost if its interpretations are shown to be incorrect. In the event that the Designer request’s City’s direction on how to proceed with respect to any inconsistent and/or conflicting interpretation, the Designer shall be responsible to the City only pursuant to the indemnification provisions of this Agreement.

3.5.4 Permits, Approvals and Authorizations. Designer shall provide City with a list of all permits, approvals or other authorizations required for the Project from all federal, state

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Exhibit B-5
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or local governmental bodies with approval jurisdiction over the Project. The designer shall then assist the City in obtaining all such permits, approvals and other authorizations. The costs of such permits, approvals and other authorizations shall be paid by the City.

3.5.5 Water Quality Management and Compliance.
(a) Compliance with Water Quality Laws, Ordinances and Regulations.

Designer shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); and any and all regulations, policies, or permits issued pursuant to any such authority. Designer shall additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.
(b) Standard of Care. Designer warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in Sections 3.5.5(a) of this Agreement. Designer further warrants that it, its employees and subcontractors will receive adequate training, as determined by the City, regarding these requirements as they may relate to the Services.
(c) Liability for Non-compliance.
(i) Indemnity: Failure to comply with laws, regulations, and ordinances listed in Section employees’, a) of this Agreement is a violation of federal and state law. Notwithstanding any other indemnity contained in this Agreement, Designer agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
(ii) Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Designer’s failure to comply with any applicable water quality law, regulation, or policy. Designer hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity.
(iii) Damages: City may seek damages from Designer for delay in completing the Services caused by Designer’s failure to comply with the laws, regulations and

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policies described in Section 3.5.5(a) of this Agreement, or any other relevant water quality law, regulation, or policy.

3.5.6 Air Quality.
(a) Compliance with Air Quality Laws, Ordinances, and Regulations. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Contractor shall specifically be aware of the CARB limits and requirements’ application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.

3.6 Independent Contractor.

3.6.1 Control and Payment of Subordinates. City retains Designer on an independent contractor basis and Designer is not an employee of City. Designer is not an employee for state tax, federal tax or any other purpose, and is not entitled to the rights or benefits afforded to City’s employees. Any additional personnel performing the Services under this Agreement on behalf of Designer shall also not be employees of City, and shall at all times be under Designer’s exclusive direction and control. Designer shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Designer shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.7 Schedule of Services.

3.7.1 Designer Services. Designer shall fully and adequately complete the Services described in this Agreement and in Exhibit “A” attached hereto and incorporated herein by reference.

3.7.2 Timely Performance Standard. Designer shall perform all Services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein.

Specifically, Designer shall perform its Services so as to allow for the full and adequate completion of the Project within the time required by the City and within any completion schedules adopted for the Project. Designer agrees to coordinate with City’s staff, contractors and consultants in the performance of the Services, and shall be available to City’s staff, contractors and consultants at all reasonable times.

3.7.3 Performance Schedule. Designer shall prepare an estimated time schedule for the performance of Designer’s Services, to be adjusted as the Project proceeds.

Such schedule shall be subject to the City’s review and approval, which approval shall not be unreasonably withheld, and shall include allowances for periods of time required for City’s review and approval of submissions, and for approvals of authorities having jurisdiction over Project

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approval and funding. If City and Designer cannot mutually agree on a performance schedule, City shall have the authority to immediately terminate this Agreement. The schedule shall not be exceeded by Designer without the prior written approval of City. If the Designer’s Services are not completed within the time provided by the agreed upon performance schedule, or any milestones established therein, it is understood, acknowledged and agreed that the City will suffer damage for which the Designer will be responsible pursuant to the indemnification provision of this Agreement.

3.7.4 Excusable Delays. Any delays in Designer’s work caused by the following shall be added to the time for completion of any obligations of Designer: (1) the actions of City or its employees; (2) the actions of those in direct contractual relationship with City; (3) the actions of any governmental agency having jurisdiction over the Project; (4) the actions of any parties not within the reasonable control of the Designer; and (5) Force Majeure Event . Neither the City nor the Designer shall be liable for damages, liquidated or otherwise, to the other on account of such delays. Such a non-compensable adjustment shall be Designer’s sole and exclusive remedy for such delays and the Designer will not receive an adjustment to the contract price or any other compensation. A Force Majeure Event shall mean an event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Designer and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

3.7.5 Request for Excusable Delay Credit. The Designer shall, within fifteen (15) calendar days of the beginning of any excusable delay, notify the City in writing of the causes of delay (unless City grants in writing a further period of time to file such notice prior to the date of final payment under the Agreement). City will then ascertain the facts and the extent of the delay, and grant an extension of time for completing the Services when, in its sole judgment, the findings of fact justify such an extension. The City’s findings of fact thereon shall be final and conclusive on the parties. Extensions of time shall apply only to that portion of the Services affected by the delay and shall not apply to other portions of the Services not so affected. The sole remedy of Designer for extensions of time shall be an extension of the performance time at no cost to the City. If Additional Services are required as a result of an excusable delay, the parties shall mutually agree thereto pursuant to the Additional Services provision of this Agreement. Should Designer make an application for an extension of time, Designer shall submit evidence that the insurance policies required by this Agreement remain in effect during the requested additional period of time.

3.8 Additional Designer Services.

3.8.1 Request for Services. At City’s request, Designer may be asked to perform services not otherwise included in this Agreement, not included within the basic services listed in Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally accepted design practice.

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3.8.2 Definition. As used herein, “Additional Services” mean: (1) any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary for the Designer to perform at the execution of this Agreement; or (2) any work listed as Additional Services in Exhibit “A” attached hereto. Designer shall not perform, nor be compensated for, Additional Services without prior written authorization from City and without an agreement between the City and Designer as to the compensation to be paid for such services. City shall pay Designer for any approved Additional Services, pursuant to the compensation provisions herein, so long as such services are not made necessary through the fault of Designer pursuant to the indemnification provision of this Agreement.

3.8.3 Examples of Additional Services. Such Additional Services shall not include any redesign or revisions to drawings, specifications, or other documents when such revisions are necessary in order to bring such documents into compliance with applicable laws, rules, regulations or codes of which Designer was aware or should have been aware pursuant to the laws and regulations provision of this Agreement above. Such Additional Services may include, but shall not be limited to:
(a) Separately Bid Portions of Project. Plan preparation and/or administration of work on portions of the Project separately bid. (b) Furniture and Interior Design. Assistance to City, if requested, for the selection of moveable furniture, equipment or articles which are not included in the Construction Documents.
(c) Fault of Contractor. Services caused by delinquency, default or insolvency of contractor, or by major defects in the work of the contractor, provided that any such services made necessary by the failure of Designer to detect and report such matters when it reasonably should have done so shall not be compensated. (d) Inconsistent Approvals or Instructions. Revisions in drawings, specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given and are due to causes beyond the control of Designer. (e) Legal Proceedings. Serving as an expert witness on City's behalf or attending legal proceedings to which the Designer is not a party. (f) Damage Repair. Supervision of repair of damages to any structure. (g) Extra Environmental Services. Additional work required for environmental conditions (e.g. asbestos or site conditions) not already contemplated within the Designer's services for the Project.

3.9 City Responsibilities. City’s responsibilities shall include the following:

3.9.1 Data and Information. City shall make available to Designer all necessary data and information concerning the purpose and requirements of the Project, including scheduling and budget limitations, objectives, constraints and criteria. As part of the budget limitation information, the City shall provide the Designer with a preliminary construction budget (“City’s Preliminary Construction Budget”).

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3.9.2 Project Survey. If required pursuant to the scope of the Project and if requested by Designer, City shall furnish Designer with, or direct Designer to procure at City’s expense, a survey of the Project site prepared by a registered surveyor or civil engineer, any other record documents which shall indicate existing structures, land features, improvements, sewer, water, gas, electrical and utility lines, topographical information and boundary dimensions of the site, and any other such pertinent information.

3.9.3 Bid Phase. Distribute Construction Documents to bidders and conduct the opening and review of bids for the Project.

3.9.4 Testing. Retain consultant(s) to conduct chemical, mechanical, soils, geological or other tests required for proper design of the Project, and furnish such surveys, borings, test pits, and other tests as may be necessary to reveal conditions of the site which must be known to determine soil condition or to ensure the proper development of the required drawings and specifications.

3.9.5 Required Inspections and Tests. Retain consultant(s) to conduct materials testing and inspection or environmental/hazardous materials testing and inspection pursuant to any applicable laws, rules or regulations.

3.9.6 Fees of Reviewing or Licensing Agencies. Directly pay or reimburse the payment of all fees required by any reviewing or licensing agency, or other agency having approval jurisdiction over the Project.

3.9.7 City’s Representative. The City hereby designates Charles E. McNeely, Interim City Manager or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Representative hereby designates Daniel Hernandez, Agency Director of Public Works, Operations, and Maintenance, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.

3.9.8 Review and Approved Documents. Review all documents submitted by Designer, including change orders and other matters requiring approval by the City Council or other officials. City shall advise Designer of decisions pertaining to such documents within a reasonable time after submission, so as not to cause unreasonable delay as provided in the excusable delay provisions of this Agreement above.

3.10 Compensation.

3.10.1 Designer’s Compensation for Basic Services. City shall pay to Designer, for the performance of all Services rendered under this Agreement, the total not to exceed amount of One Hundred Eighty Three Thousand Four Hundred Sixty Five Dollars ($183,465) (“Total Compensation”). This Total Compensation amount shall be based upon, and may be adjusted according to, the fee schedule and related terms and conditions attached hereto as Exhibit “B” and incorporated herein by reference. The Total Compensation, as may be adjusted upon mutual agreement, shall constitute complete and adequate payment for Services under this Agreement.

3.10.2 Payment for Additional Services. At any time during the term of this Agreement, City may request that Designer perform Additional Services. As used herein,

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Additional Services means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Any additional work in excess of this amount must be approved by the City. If authorized, such Additional Services will be compensated at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties. If City requires Designer to hire consultants to perform any Additional Services, Designer shall be compensated therefore at the rates and in the manner set forth in Exhibit “C” attached hereto and incorporated herein by reference, unless a flat rate or some other form of compensation is mutually agreed upon by the parties. City shall have the authority to review and approve the rates of any such consultants. In addition, Designer shall be reimbursed for any expenses incurred by such consultants pursuant to the terms and conditions of Section 3.10.3.

3.10.3 Reimbursable Expenses. Reimbursable expenses are in addition to compensation for the Services and Additional Services. Designer shall not be reimbursed for any expenses unless authorized in writing by City, which approval may be evidenced by inclusion in Exhibit “C” attached hereto. Such reimbursable expenses shall include only those expenses which are reasonably and necessarily incurred by Designer in the interest of the Project. Designer shall be required to acquire prior written consent in order to obtain reimbursement for the following: (1) extraordinary transportation expenses incurred in connection with the Project; (2) out-of-town travel expenses incurred in connection with the Project; (3) fees paid for securing approval of authorities having jurisdiction over the Project; (4) bid document duplication costs in excess of $1,000; and (5) other costs, fees and expenses in excess of $1,000.

3.10.4 Payment to Designer. Designer’s compensation and reimbursable expenses shall be paid by City to Designer no more often than monthly. Such periodic payments shall be made based upon the percentage of work completed, and in accordance with the phasing and funding schedule provided in Exhibit “B” and the compensation rates indicated in Exhibit “C” attached hereto and incorporated herein by reference. In order to receive payment, Designer shall present to City an itemized statement which indicates Services performed, percentage of Services completed, method for computing the amount payable, and the amount to be paid at the address listed in Section 3.29. The statement shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement, as well as those expenses for which reimbursement is requested for that statement period. The amount paid to Designer shall never exceed the percentage amounts authorized by the phasing and funding schedule located in Exhibit “B” attached hereto. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.

Payments made for Additional Services shall be made in installments, not more often than monthly, proportionate to the degree of completion of such services or in such other manner as the parties shall specify when such services are agreed upon, and in accordance with any authorized fee or rate schedule. In order to receive payment, Designer shall present to City an itemized statement which indicates the Additional Services performed, percentage of Additional Services completed, method for computing the amount payable, and the amount to be paid. The statement shall describe the amount of Additional Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon pursuant to the provisions of Civil Code Section 3320. Disputed amounts shall be resolved by the parties in a mutually agreeable manner.

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Upon cancellation or termination of this Agreement, Designer shall be compensated as set forth in the termination provision herein.

3.10.5 Withholding Payment to Designer. The City may withhold payment, in whole or in part, to the extent reasonably necessary to protect the City from claims, demands, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind to the extent arising out of or caused by the negligence, recklessness, or willful misconduct protected under the indemnification provisions of this Agreement. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of the City’s right to such sums. The City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefor, to the payment of any expenses, losses, or damages as determined by the City, incurred by the City for which Designer is liable under the Agreement or state law. Payments to the Designer for compensation and reimbursable expenses due shall not be contingent on the construction, completion or ultimate success of the Project. Payment to the Designer shall not be withheld, postponed, or made contingent upon receipt by the City of offsetting reimbursement or credit from parties not within the Designer’s reasonable control.

3.10.6 Prevailing Wages. Designer is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Designer agrees to fully comply with and to require its consultants to fully comply with such Prevailing Wage Laws. City shall provide Designer with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement.

Designer shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Designer’s principal place of business and at the Project site.

Designer shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure of the Designer or its consultants to comply with the Prevailing Wage Laws. It shall be mandatory upon the Designer and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

3.10.7 Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Designer and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Designer shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

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3.10.8 Labor Compliance. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Designer’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Designer or any subcontractor that affect Designer’s performance of Services, including any delay, shall be Designer’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Designer caused delay and shall not be compensable by the City. Designer shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Designer or any subcontractor.

3.11 Notice to Proceed.

Designer shall not proceed with performance of any Services under this Agreement unless and until the City provides a written notice to proceed.

3.12 Termination, Suspension and Abandonment.

3.12.1 Grounds for Termination; Designer’s Termination for Cause. City hereby reserves the right to suspend or abandon, at any time and for any reason, all or any portion of the Project and the construction work thereon, or to terminate this Agreement at any time with or without cause. Designer shall be provided with at least seven (7) days advanced written notice of such suspension, abandonment or termination. In the event of such suspension, abandonment or termination, Designer shall be paid for Services and reimbursable expenses rendered up to the date of such suspension, abandonment or termination, pursuant to the schedule of payments provided for in this Agreement, less any claims against or damages suffered by City as a result of the default, if any, by Designer. Designer hereby expressly waives any and all claims for damages or compensation arising under this Agreement, except as set forth herein, in the event of such suspension, abandonment or termination. Designer may terminate this Agreement for substantial breach of performance by the City such as failure to make payment to Designer as provided in this Agreement.

3.12.2 City’s Suspension of Work. If Designer’s Services are suspended by City, City may require Designer to resume such Services within ninety (90) days after written notice from City. When the Project is resumed, the Total Compensation and schedule of Services shall be equitably adjusted upon mutual agreement of the City and Designer.

3.12.3 Documents and Other Data. Upon suspension, abandonment or termination, Designer shall provide to City all preliminary studies, sketches, working drawings, specifications, computations, and all other Project Documents, as defined below, to which City would have been entitled at the completion of Designer’s Services under this Agreement. Upon payment of the amount required to be paid to Designer pursuant to the termination provisions of this Agreement, City shall have the rights, as provided in this Agreement hereinafter, to use such Project Documents prepared by or on behalf of Designer under this Agreement. Designer shall make such documents available to City upon request and without additional compensation other than as may be approved as a reimbursable expense.

3.12.4 Employment of other Designers. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

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3.13 Ownership and Use of Documents; Confidentiality.

3.13.1 Ownership. All plans, specifications, original or reproducible transparencies of working drawings and master plans, preliminary sketches, design presentation drawings, structural computations, estimates and any other documents prepared pursuant to this Agreement, including, but not limited to, any other works of authorship fixed in any tangible medium of expression such as writings, physical drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter referred to as the “Project Documents”) shall be and remain the property of City. Although the official copyright in all Project Documents shall remain with the Designer or other applicable subcontractors or consultants, the Project Documents shall be the property of City whether or not the work for which they were made is executed or completed. Within thirty (30) calendar days following completion of the Project, Designer shall provide to City copies of all Project Documents required by City. In addition, Designer shall retain copies of all Project Documents on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of reasonable duplication costs. Before destroying the Project Documents following this retention period, Designer shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.

3.13.2 Right to Use. Designer grants to City the right to use and reuse all or part of the Project Documents, at City’s sole discretion and with no additional compensation to Designer, for the following purposes:
(a) The construction of all or part of this Project.
(b) The repair, renovation, modernization, replacement, reconstruction or expansion of this Project at any time;
(c) The construction of another project by or on behalf of the City for its ownership and use;
City is not bound by this Agreement to employ the services of Designer in the event such documents are used or reused for these purposes. City shall be able to use or reuse the Project Documents for these purposes without risk of liability to the Designer or third parties with respect to the condition of the Project Documents, and the use or reuse of the Project Documents for these purposes shall not be construed or interpreted to waive or limit City’s right to recover for latent defects or for errors or omissions of the Designer.

Any use or reuse by City of the Project Documents on any project other than this Project without employing the services of Designer shall be at City’s own risk with respect to third parties. If City uses or reuses the Project Documents on any project other than this Project, it shall remove the Designer’s seal from the Project Documents and hold harmless Designer and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Project Documents on such other project.

3.13.3 License. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify or reuse any and all Project Documents and any intellectual property rights therein. Designer shall require any and all subcontractors and consultants to agree in writing that City is granted a non-exclusive and perpetual license for the work of such subcontractors or consultants performed pursuant to this Agreement.

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3.13.4 Right to License. Designer represents and warrants that Designer has the legal right to license any and all copyrights, designs and other intellectual property embodied in the Project Documents that Designer prepares or causes to be prepared pursuant to this Agreement. Designer shall indemnify and hold City harmless pursuant to the indemnification provisions of this Agreement for any breach of this Section. Designer makes no such representation and warranty in regard to previously prepared designs, plans, specifications, studies, drawings, estimates or other documents that were prepared by design professionals other than Designer and provided to Designer by City.

3.13.5 Confidentiality. All Project Documents, either created by or provided to Designer in connection with the performance of this Agreement, shall be held confidential by Designer to the extent they are not subject to disclosure pursuant to the Public Records Act. All Project Documents shall not, without the written consent of City, be used or reproduced by Designer for any purposes other than the performance of the Services. Designer shall not disclose, cause or facilitate the disclosure of the Project Documents to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Designer which is otherwise known to Designer or is generally known, or has become known, to the related industry shall be deemed confidential. Designer shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the written consent of City.

3.14 Indemnification.

3.14.1 To the fullest extent permitted by law, Designer shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Designer, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Designer’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Designer's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Designer, the City, its officials, officers, employees, agents, or volunteers.

3.14.2 If Designer’s obligation to defend, indemnify, and/or hold harmless arises out of Designer’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Designer’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Designer, and, upon Designer obtaining a final adjudication by a court of competent jurisdiction, Designer’s liability for such claim, including the cost to defend, shall not exceed the Designer’s proportionate percentage of fault.

3.15 Insurance. Designer shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Designer shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.

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3.15.1 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, Designer shall, at its expense, procure and maintain in full force and effect for the duration of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Designer agrees to amend, supplement or endorse the policies to do so.

3.15.2 Additional Insured. The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Designer’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.

3.15.3 Commercial General Liability
(a) The Designer shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (b) Coverage for Commercial General Liability insurance shall be at least as broad as the following: Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion deleted
(7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(c) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(d) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.

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Exhibit B-16
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(e) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.

3.15.4 Automobile Liability
(a) At all times during the performance of the work under this Agreement, the Designer shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(b) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(c) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status.
(d) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.

3.15.5 Workers’ Compensation/Employer’s Liability
(a) Designer certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(b) To the extent Designer has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Designer shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein.

Designer shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this Section.

3.15.6 Professional Liability (Errors and Omissions)
(a) At all times during the performance of the work under this Agreement the Designer shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability

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applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Designer. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.

3.15.7 Privacy/Network Security (Cyber
(a) At all times during the performance of work under this Agreement, the Designer shall maintain privacy/network security insurance, in a form and with insurance companies acceptable to the City, for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code.

3.15.8 Minimum Policy Limits Required
(a) The following insurance limits are required for the Agreement:

Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $1,000,000 per occurrence and aggregate (b) Defense costs shall be payable in addition to the limits. (c) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirements, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.

3.15.9 Evidence Required
(a) Prior to execution of the Agreement, the Designer shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the

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insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.

3.15.10 Policy Provisions Required
(a) Designer shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Designer shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non- payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Designer shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Designer’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss.
(c) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Designer shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Designer shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(d) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Designer or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Designer hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (e) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

Further the limits set forth herein shall not be construed to relieve the Designer from liability in excess of such coverage, nor shall it limit the Designer’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.

3.15.11 Qualifying Insurers
(a) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.15.12 Additional Insurance Provisions

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(a) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Designer, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Designer pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(b) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Designer or City will withhold amounts sufficient to pay premium from Designer payments. In the alternative, City may cancel this Agreement.
(c) The City may require the Designer to provide complete copies of all insurance policies in effect for the duration of the Project. (d) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.

3.15.13 Subconsultant Insurance Requirements
(a) Designer shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Designer, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.

3.16 Records.

Designer shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Designer shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Designer shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of five (5) years from the date of final payment under this Agreement.

3.17 Standardized Manufactured Items.

Designer shall cooperate and consult with City in the use and selection of manufactured items on the Project, including but not limited to, paint, hardware, plumbing, mechanical and electrical equipment, fixtures, roofing materials and floor coverings. All such manufactured items shall be standardized to City’s criteria to the extent such criteria do not interfere with building design.

3.18 Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described herein.

Any additional or subsequent construction at the site of the Project, or at any other City site, will be covered by, and be the subject of, a separate Agreement for design services between City and

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the designer chosen therefor by City.

3.19 Mediation.

Disputes arising from this Agreement may be submitted to mediation if mutually agreeable to the parties hereto. The type and process of mediation to be utilized shall be subject to the mutual agreement of the parties.

3.20 Successors and Assigns.

This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Designer shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.

3.21 Asbestos Certification.

Designer shall certify to City, in writing and under penalty of perjury, that to the best of its knowledge, information and belief no asbestos-containing material or other material deemed to be hazardous by the state or federal government was specified as a building material in any construction document that the Designer prepares for the Project. Designer shall require all consultants who prepare any other documents for the Project to submit the same written certification. Designer shall also assist the City in ensuring that contractors provide City with certification, in writing and under penalty of perjury, that to the best of their knowledge, information and belief no material furnished, installed or incorporated into the Project contains asbestos or any other material deemed to be hazardous by the state or federal government. These certifications shall be part of the final Project submittal. Designer shall include statements in its specifications that materials containing asbestos or any other material deemed to be hazardous by the state or federal government are not to be included.

3.22 No Third Party Rights.

This Agreement shall not create any rights in, or inure to the benefits of, any third party except as expressly provided herein.

3.23 Governing Law.

This Agreement shall be construed in accordance with, and governed by, the laws of the State of California. Venue shall be in San Bernardino County.

3.24 Exhibits and Recitals.

All exhibits and recitals contained herein and attached hereto are material parts of this Agreement and are incorporated as if fully set forth.

3.25 Severability.

Should any provision in the Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall continue in full force and effect.

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3.26 Non-Waiver.

None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.

3.27 Safety.

Designer shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Designer shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of its employees, consultant and subcontractors appropriate to the nature of the work and the conditions under which the work is to be performed.

3.28 Harassment Policy.

Designer shall provide a copy of the City's Harassment Policy to each of its employees assigned to perform the tasks under this Agreement. Designer shall submit to the City's Personnel Manager a statement signed by each of its employees who are assigned to perform the Services under this Agreement certifying receipt of City's Harassment Policy and certifying that they have read the Harassment Policy. A finding by the City that any of Designer's employees has harassed a City employee shall be grounds for appropriate discipline, up to and including such employee's removal from performance of this Agreement at City's request.

3.29 Delivery of Notices.

All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

CITY:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, California 92401
Attn: Interim City Manager
With a Copy to:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
DESIGNER:

Ludwig Engineering Associates, Inc.
109 E. 3rd Street
San Bernardino, CA 92410
Attn: Jeff Ashabaker
Vice President

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Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.30 Time of Essence.

Time is of the essence for each and every provision of this Agreement.

3.31 City’s Right to Employ Other Consultants.

City reserves right to employ other consultants, including designers, in connection with this Project or other projects.

3.32 Prohibited Interests.

3.32.1 Solicitation. Designer maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Designer, to solicit or secure this Agreement. Further, Designer warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Designer, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.

3.32.2 Conflict of Interest. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.33 Equal Opportunity Employment.

Designer represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or any other classification protected by federal or state law. Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.

Designer shall also comply with all relevant provisions of City’s minority business enterprise program, affirmative action plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.34 Labor Certification.

By its signature hereunder, Designer certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.35 Subcontracting.

As specified in this Agreement, Designer shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to each and every

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provision of this Agreement.

3.36 Supplemental Conditions.

Any supplemental conditions shall be attached as an exhibit to this Agreement, and that exhibit shall be incorporated herein by reference.

3.37 Electronic Signature.

Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.

3.38 Entire Agreement.

This Agreement, with its exhibits, contains the entire agreement of the parties hereto, and supersedes any and all other prior or contemporaneous negotiations, understandings and oral or written agreements between the parties hereto. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. Furthermore, any modification of this Agreement shall only be effective if in writing signed by all parties hereto. [SIGNATURES ON FOLLOWING PAGE]

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SIGNATURE PAGE FOR DESIGN SERVICES AGREEMENT

BETWEEN THE CITY OF SAN BERNARDINO
AND RHA LANDSCAPE ARCHITECTS PLANNERS, INC.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.

CITY OF SAN BERNARDINO
APPROVED BY:

Charles E. McNeely
Interim City Manager
ATTESTED BY:

Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:

Sonia R. Carvalho City Attorney

LUDWIG ENGINEERING ASSOCIATES,
INC.

DO NOT SIGN FOR REVIEW PURPOSES
ONLY
Signature
Name
Title

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EXHIBIT A
DESIGNER’S SCOPE OF SERVICES

4. GENERAL REQUIREMENTS.

4.1 Basic Services. Designer agrees to perform all the necessary professional design, engineering (e.g. site engineering, and any other necessary engineering services mutually agreeable to the parties) and construction administration services for the Project in a timely and professional manner, consistent with the standards of the profession, including those provided for herein.

4.2 Exclusions from Basic Services. The following services shall be excluded from the basic services listed above: N/A

4.3 Additional Services. Designer shall perform the following Additional Services for the Project: N/A

4.4 Communication with City. Designer shall participate in consultations and conferences with authorized representatives of City and/or other local, regional, or state agencies concerned with the Project, which may be necessary for the completion of the Project or the development of the drawings, specifications and documents in accordance with the applicable standards and requirements of law and the City. Such consultations and conferences shall continue throughout the planning and construction of the Project and the contractor’s warranty period. Designer shall take direction only from the City’s Representative, or any other representative specifically designated by the City for this Project, including any construction manager hired by the City.

4.5 Coordination and Cooperation with Construction Manager. The City may hire a construction manager to administer and coordinate all or any part of the Project on its behalf. If the City does so, it shall provide a copy of its agreement with the construction manager so that the Designer will be fully aware of the duties and responsibilities of the construction manager.

The Designer shall cooperate with the construction manager and respond to any requests or directives authorized by the City to be made or given by the construction manager. The Designer shall request clarification from the City in writing if the Designer should have any questions regarding the authority of the construction manager.

5. INITIAL PLANNING PHASE.

During the initial planning phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:

5.1 Project Feasibility. Provide advice and assistance to City in determining the feasibility of the Project, analysis of the type and quality of materials and construction to be selected, the site location, and other initial planning matters.

5.2 Meeting Budget and Project Goals. Designer shall notify City in writing of potential complications, cost overruns, unusual conditions, and general needs that potentially impact the Project budget and timeline, including the City’s Preliminary Construction Budget.

Designer shall use its best judgment in determining the balance between the size, type and quality of construction to achieve a satisfactory solution within the Project’s budget and construction allowance. It shall be the duty of the Designer to design the Project within budget. As discussed

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herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by the stated amount, Designer may be required to make the necessary changes in the drawing and specifications, at its sole cost and expense, to bring the bids within the required budget.

5.3 Permits, Approvals and Authorizations. As indicated in Section 3.5.4 of the Agreement, Designer shall assist City in securing easements, encroachment permits, rights of way, dedications, infrastructures and road improvements, as well as coordinating with utilities and adjacent property owners.

6. SCHEMATIC PLAN PHASE.

During the schematic plan phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:

6.1 Funding Documents. Designer shall provide a site plan and all other Project- related information necessary and required for an application by City to any federal, state, regional, or local agencies for funds to finance the construction Project.

6.2 Schematic Plans. In cooperation with City, Designer shall prepare preliminary plans and studies, schematic drawings, site utilization plans, and phasing plans showing the scale and relationship of the components of the Project, the plot plan development at the site, and the proposed design concept of the buildings (“Schematic Plans”). Designer shall incorporate the functional requirements of City into the Schematic Plans. The Schematic Plans shall meet all laws, rules and regulations of the State of California. The Schematic Plans shall show all rooms incorporated in each building of the Project in single-line drawings, and shall include all revisions required by City or by any federal, state, regional or local agency having jurisdiction over the Project. All design drawings for the Project shall be in a form suitable for reproduction.

6.3 Preliminary Project Budget. Designer shall use the City’s Preliminary Construction Budget and its own expertise and experience with the Project to establish a preliminary project budget or allowance in a format required by City (“Designer’s Preliminary Project Budget”). The purpose of the Designer’s Preliminary Project Budget is to show the probable Project cost in relation to City’s Preliminary Construction Budget and the construction standards of any applicable funding agency. If Designer perceives site considerations which render the Project expensive or cost prohibitive, Designer shall disclose such conditions in writing to City immediately. As discussed herein, including in Section 7.3, if the lowest responsive and responsible bid for the Project exceeds the budget by more than the stated amount, Designer may be required to make the necessary changes in the drawings and specifications, at its sole cost and expense, to bring the bids within the required budget Designer shall provide a preliminary written time schedule for the performance of all construction work on the Project.

6.4 Copies of Schematic Plans and Other Documents. Designer, at its own expense, shall provide a complete set of the Schematic Plans described herein for City’s review and approval. Additionally, at City’s expense, Designer shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

7. DESIGN DEVELOPMENT PHASE.

During the design development phase of the Project, Designer shall do all of the following, as well

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as any incidental services thereto:

7.1 Design Development Documents. Once City provides Designer with specific written approval of the Schematic Plans described herein, Designer shall prepare design development documents consisting of: preliminary design plans, environmental clearance, potholing report, design survey and base mapping, hydrology and hydraulic study, preliminary design plans, geotechnical investigative report, traffic control and detour plans, final plans, San Bernardino County Flood control permit and specifications and cost estimate. Any other task identified in the project proposal that may not been listed above but required to complete the project design. The Design Development Documents shall be prepared in sufficient form to present to the City Council for approval and be ready for the City to advertise for bidding purposes.

7.2 Copies of Design Development and Other Documents. Designer, at its own expense, shall provide a complete set of the Design Development Documents described herein for City’s review and approval. Additionally, at City’s expense, Designer shall provide such documents as may be required by any federal, state, regional or local agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

7.3 Updated Project Budget. Designer shall use its Preliminary Project Budget and expertise and experience with the Project to establish an updated estimate of probable construction costs, containing detail consistent with the Design Development Documents as set forth herein and containing a breakdown based on types of materials and specifications identified herein (“Designer’s Updated Project Budget”).

7.4 Timetable. Designer shall provide a written timetable for full and adequate completion of the Project to City.

7.5 Application for Approvals. Designer shall assist City in applying for and obtaining required approvals from all federal, state, regional or local agencies concerned with the Project. Designer shall furnish and process all design and engineering information required to prepare and process applications to applicable utilities in order to secure priorities and materials, to aid in the construction of the Project and to obtain final Project approval and acceptance by any of the above agencies as may be required.

7.6 Color and Other Aesthetic Issues. Designer shall provide, for City’s review and approval, a preliminary schedule of all color materials and selections of textures, finishes and other matters involving an aesthetic decision about the Project.

8. FINAL WORKING DRAWINGS AND SPECIFICATIONS.

During the final working drawings and specifications phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:

8.1 Final Working Drawings and Specifications. Once City provides Designer with specific written approval of the Design Development Documents described herein, Designer shall prepare such complete working drawings and specifications as are necessary for developing complete bids and for properly executing the Project work in an efficient and thorough manner (“Final Working Drawings and Specifications”). Such Final Working Drawings and Specifications shall be developed from the Schematic Plans and Design Development Documents approved by City. The Final Working Drawings and Specifications shall set forth in detail all of the following:
(1) the Project construction work to be done; (2) the materials, workmanship, finishes, and

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equipment required for the architectural, structural, mechanical, and electrical systems; and (3) the utility service connection equipment and site work. As indicated in Section 3.9.2 of the Agreement, City may be requested to supply Designer with the necessary information to determine the proper location of all improvements on and off site, including record drawings (“as- built drawings”) in City’s possession. Designer will make a good-faith effort to verify the accuracy of such information by means of a thorough interior and exterior visual survey of site conditions.

City shall also make a good-faith effort to verify the accuracy of the as-built drawings and provide any supplemental information to Designer which may not be shown on the as-built drawings.

8.2 Form. The Final Working Drawings and Specifications must be in such form as will enable Designer and City to secure the required permits and approvals from all federal, state, regional or local agencies concerned with the Project. In addition, the Final Working Drawings and Specifications must be in such form as will enable City to obtain, by competitive bidding, a responsible and responsive bid within the applicable budgetary limitations and cost standards.

The Final Working Drawings and Specifications shall be clear and legible so that uniform copies may be on standard architectural size paper, properly indexed and numbered, and shall be capable of being clearly copied and assembled in a professional manner by Designer.

8.3 Approval and Revisions. City shall review, study, and check the Final Working Drawings and Specifications presented to it by Designer, and request any necessary revisions or obtain any necessary approvals by the City Council, subject to the approval of all federal, state, regional or local agencies concerned with the Project. Designer shall make all City-requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications at no additional cost, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Designer’s professional judgment. Designer shall bring any such conflicts and/or inconsistencies to the attention of City. The parties agree that Designer, and not the City, possesses the requisite expertise to determine the constructability of the Final Working Drawings and Specifications.

However, the City reserves the right to conduct one or more constructability review processes with the Final Working Drawings and Specifications, and to hire an independent designer or other consultant to perform such reviews. Any such independent constructability review shall be at City’s expense. Designer shall make all City-requested changes, additions, deletions, and corrections in the Final Working Drawings and Specifications which may result from any constructability review, at no additional cost to the City, so long as they are not in conflict with the requirements of public agencies having jurisdiction or prior approval, or inconsistent with earlier City direction or Designer’s professional judgment. If such changes, additions, deletions or corrections are inconsistent with prior City direction, Designer shall make such alterations and be compensated therefore pursuant to the Additional Services provision of this Agreement.

8.4 Costs of Construction. It is understood by Designer that should the Final Working Drawings and Specifications be ordered by City, City shall specify the sum of money set aside to cover the total cost of construction of the work, exclusive of Designer’s fees. Should it become evident that the total construction cost will exceed the specified sum, Designer shall at once present a statement in writing to the City’s Representative setting forth this fact and giving a full statement of the cost estimates on which the conclusion is based.

8.5 Copies of Final Working Drawings and Specifications and Other Documents.

Designer, at its own expense, shall provide a complete set of the Final Working Drawings and Specifications described herein for City’s review and approval. Additionally, at City’s expense, Designer shall provide such documents as may be required by any federal, state, regional or local

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agencies concerned with the Project. Any additional copies required by City shall be provided at actual cost to City.

9. CONSTRUCTION CONTRACT DOCUMENTS.

During the construction contract documents phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:

9.1 Bid and Contract Documents. If so required by City, Designer shall assist City in the completion of all bid and construction documents, including but not limited to, the Notice Inviting Bids, Instructions to Bidders, Contract Bid Forms (including Alternate Bids as requested by City), Contract, General Conditions, Supplementary General Conditions, Special Conditions, DVBE and other applicable affirmative action documents, Performance Bond, Payment Bond, Escrow Agreement for Security Deposits, and any other certifications and documents required by federal, state and local laws, rules and regulations which may be reasonably required in order to obtain bids responsive to the specifications and drawings. All such documents shall be subject to the approval of City and City’s legal counsel.

9.2 Final Estimate. At the time of delivery of these bid and construction documents, which shall include the Final Working Drawings and Specifications (collectively referred to herein as the “Construction Documents”), Designer shall provide City with its final estimate of probable construction cost (“Designer’s Final Estimate”). As discussed herein, including in Section 7.3, it shall be the Designer’s duty to design the Project within budget.

10. BID PHASE.

During the bid phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:

10.1 Reproducible Construction Documents. Once City provides Designer with specific written approval of the Construction Documents and Designer’s Final Estimate, Designer shall provide to City one set of reproducible Construction Documents.

10.2 Distribution of Contract Documents and Review of Bids. Designer shall assist City in distributing the Construction Documents to bidders and conducting the opening and review of bids for the Project.

10.3 Over Budget. If the apparent lowest responsive and responsible bid on the Project exceeds the Designer’s Final Estimate by more than five percent (5%), City may request Designer to amend, at Designer’s sole cost and expense, the Final Drawings and Specifications in order to rebid the Project and receive a lowest responsive and responsible bid equal to or less than the Designer’s Final Estimate. All revisions necessary to bring the lowest responsible and responsive bid within the Designer’s Final Estimate, including any omissions, deferrals or alternates, shall be made in consultation with, and subject to the approval of, the City.

11. CONSTRUCTION PHASE.

During the construction phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:

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11.1 Observation. The Project Designer shall observe work executed from the Final Working Drawings and Specifications in person, provided that City may, in its discretion, consent to such observation by another competent representative of Designer.

11.2 General Administration. Designer shall provide general administration of the Construction Documents and the work performed by the contractors.

11.3 Pre-Construction Meeting. Designer shall conduct one or more pre-construction meetings, as the City determines is needed for the Project, with all interested parties.

11.4 Site Visits of Contractor’s Work. Designer shall conduct site visits to observe each contractors’ work for general conformance with the Construction Documents and with any approved construction schedules or milestones. Such site visits shall be conducted as often as are necessary and appropriate to the stage of construction, according to the City’s sole discretion, but in no event less than weekly.

11.5 Site Visits of Inspector’s Work. Designer shall conduct site visits to communicate and observe the activities of the City inspectors. Such site visits shall be conducted as often as is mutually acceptable to Designer and City. Designer shall direct the City inspectors and the Project contractors to coordinate the preparation of record drawings indicating dimensions and location of all “as-built” conditions, including but not limited to, underground utility lines.

11.6 Coordination of Designer’s Consultants. Designer shall cause all architects, engineers and other consultants, as may be hired by Designer or City, to observe the work completed under their disciplines as required, and approve and review all test results for general conformance with the Construction Documents.

11.7 Reports. Designer shall make regular reports as may be required by applicable federal, state or local laws, rules or regulations, as well as the federal, state, regional or local agencies concerned with the Project.

11.8 Construction Meetings; Minutes. Designer shall attend all construction meetings and provide written reports/minutes to the City after each construction meeting in order to keep City informed of the progress of the work. Such meetings shall occur at a frequency necessary for the progress of the Project work, according to the City’s sole discretion, but no less than weekly.

11.9 Written Reports. Designer shall make written reports to City as necessary to inform City of problems arising during construction, changes contemplated as a result of each such problems, and progress of the Project work.

11.10 Written Records. Designer shall keep accurate written records of the progress and quality of the Project work and the time schedules, and shall advise the contractors and City of any deviations from the time schedule which could delay timely completion of the Project.

11.11 Material and Test Reports. Designer shall check and process, in a timely manner, all required material and test reports for the Project work. In addition, Designer shall provide notice of any deficiencies in material or work reflected in such reports, as well as its recommendation for correction of such deficiencies, to the contractors and City.

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11.12 Review and Response to Submissions. Designer shall review and respond, in a timely manner, to all schedules, submittals, shop drawings, samples, information requests, change requests, and other submissions of the contractor and subcontractors for compliance with, or alterations and additions to, the Construction Documents. Designer’s review and response shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.

11.13 Rejection of Work. Designer shall promptly reject, as discussed with City, work or materials which do not conform to the Construction Documents. Designer shall immediately notify the City and contractor(s) of such rejections. Designer shall also have the authority to recommend to the City that additional inspection or testing of the work be performed, whether or not such work is fabricated, installed or completed.

11.14 Substitutions. Designer shall consult with City, in a timely manner, with regard to substitution of materials, equipment and laboratory reports thereof, prior to the City’s final written approval of such substitutions. Designer’s consultation shall be done in such a manner so as to ensure the timely and uninterrupted progress of the Project work.

11.15 Revised Documents and Drawings. Designer shall prepare, at no additional expense to City, all documents and/or drawings made necessary by errors and omissions in the originally approved Construction Documents.

11.16 Change Requests and Material Changes. Designer shall evaluate and advise City, in a timely manner and in writing, of any change requests and material change(s) which may be requested or necessary in the Project plans and specifications. Designer shall provide the City with its opinion as to whether such change requests should be approved, denied or revised.

If the City has not hired a construction manager or other person to do so, the Designer shall prepare and execute all change orders and submit them to the City for authorization. If the City has designated a construction manager or other person to prepare all change orders, the Designer shall review all change orders prepared by such person, execute them and deliver them to the City for authorization if they meet with the Designer’s approval, or submit them to the City with recommendations for revision or denial if necessary. Designer shall not order contractors to make any changes affecting the contract price without approval by City of such a written change order, pursuant to the terms of the Construction Documents. Designer may order, on its own responsibility and pending City Council approval, changes necessary to meet construction emergencies, if written approval of City’s Representative is first secured.

11.17 Applications for Payment. Designer shall examine, verify and approve contractor’s applications for payment, and shall issue certificates for payment in amounts approved by the City’s inspector.

11.18 N/A

11.19 Substantial Completion. Designer shall determine the date of substantial completion, in consultation with the City.

11.20 Punch List. After determining that the Project is substantially complete, Designer shall participate in the inspection of the Project and shall review all remaining deficiencies and minor items needed to be corrected or completed on the Project, including those identified on the punch list prepared by the contractor (“Punch List Items”). Designer shall notify contractor in

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writing that all Punch List Items must be corrected prior to final acceptance of the Project and final payment. Designer shall also notify City of all Punch List Items.

11.21 Warranties. Designer shall review materials assembled by the contractor and subcontractors with regard to all written warranties, guarantees, owners’ manuals, instruction books, diagrams, record “as built” drawings, and any other materials required from the contractors and subcontractors pursuant to the Construction Documents. Designer shall coordinate and provide these materials to the City.

11.22 Certificate of Completion. Designer shall participate in any further inspections of the Project necessary to issue Designer’s Certificate of Completion and final certificate for payment.

11.23 Documents for Project Close-Out. Designer shall cause all other architects, engineers and other consultants, as may be hired by Designer, to file any and all required documentation with the City or other governmental authorities necessary to close out the Project.

Designer shall assist the City in obtaining such documentation from all other architects, engineers, or other consultants.

12. AS-BUILT DRAWINGS.

During the as-built drawings phase of the Project, Designer shall do all the following, as well as any incidental services thereto:

12.1 As-Built Drawings and Specifications. Not later than thirty (30) days after substantial completion of the Project, before receipt of final payment, Designer shall review and forward the Final Working Drawings and Specifications, indicating on them all changes made by change orders or otherwise pursuant to the Construction Documents, as well as all information called for on the specifications, thus producing an “as-built” set of Final Working Drawings and Specifications (“As-Built Drawings and Specifications”). The As-Built Drawings and Specifications shall show, among other things, the location of all concealed pipe, buried conduit runs and other similar elements within the completed Project. Designer shall personally review and certify that the As-Built Drawings and Specifications are a correct representation of the information supplied to Designer by any inspectors and the contractor and shall obtain certifications from any inspectors and the contractor that the drawings are correct.

12.2 Approval. Once City provides Designer with specific written approval of the As- Built Drawings and Specifications, Designer shall forward to City the complete set of original As- Built Drawings and Specifications or a complete set of reproducible duplicate As-Built Drawings and Specifications. The tracing shall be of such quality that clear and legible prints may be made without appreciable and objectionable loss of detail.

12.3 Documents for Final Payment. Prior to the receipt of Designer’s final payment, Designer shall forward to City all of the following: (1) one clear and legible set of reproductions of the computations; (2) the original copy of the specifications; (3) the As-Built Drawings and Specifications as required herein; and (4) Designer’s Certificate of Completion.

13. WARRANTY PERIOD.

During the warranty period phase of the Project, Designer shall do all of the following, as well as any incidental services thereto:

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13.1 Advice. Designer shall provide advice to City on apparent deficiencies in the Project during any applicable warranty periods for the Project.

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EXHIBIT B

FEE AND PHASING/FUNDING SCHEDULES

14. FEE SCHEDULE.

Designer will invoice City on a monthly cycle based on the following fee schedule. Designer will include with each invoice a detailed progress report that indicates the amount of budget spent on each phase and the total amount spent against the Total Compensation. Designer will inform City regarding any out-of-scope work being performed by Designer for which Designer intends to seek compensation from City.

15. PHASING/FUNDING SCHEDULE.

Progress payments towards Total Compensation shall never exceed the following percentages of Total Compensation as of the phase indicated:

Initial Planning Phase: ________ percent (%25)
Schematic Plan Phase: ________ percent (%25)
Design Development Phase: ________ percent (%30)
Final Working Drawings & Specifications Phase: ________ percent (%10) Construction Contract Documents Phase: ________ percent (%7) Bid Phase: ________ percent (%1.5)
Construction Phase: ________ percent (%1.5)
As-Built Drawings Phase: ________ percent (%0)
Warranty Period Phase: ________ percent (%0)

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EXHIBIT C

COMPENSATION RATES AND REIMBURSABLE EXPENSES

16. HOURLY COMPENSATION RATES.

N/A

17. REIMBURSABLE EXPENSES.

N/A

18. ADDITIONAL SERVICES.

Additional Services shall be computed at the actual hourly rates listed above.

19. ADDITIONAL CONSULTANTS.

If City requires Designer to hire consultants to perform any Additional Services, Designer shall be compensated therefore at the Designer’s actual hourly rates plus 0%. Owner shall have the authority to review and approve the rates of any such consultants.

FEE PROPOSAL (SEE ATTACHED)

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Attachment 3 – Location Map

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: August 16, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely; Interim City Manager;
Daniel Hernandez, Agency Director of Public Works,
Operations and Maintenance
Department: Public Works
Subject: Approve the Rail Storage and Maintenance Facility (“Arrow Maintenance Facility”) Operation and
Maintenance Covenant Agreement for Storm Water
Treatment Devices and Control Measures between the
City and San Bernardino County Transportation
Authority (SBCTA) for the Water Quality Management
Plan (WQMP) (All Wards)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager, or designee, execute the Rail Storage and Maintenance Facility (aka “Arrow Maintenance Facility”) Operation and Maintenance Covenant Agreement for Storm Water Treatment Devices and Control Measures between the City and San Bernardino County Transportation Authority (SBCTA) for the Water Quality Management Plan (WQMP).

Executive Summary
The Public Works Department is requesting that Mayor and Council approve the Maintenance Covenant Agreement for the Rail Storage and Maintenance Facility.

This agreement will ensure storm water compliance for post-construction pollution prevention requirements. The Arrow Maintenance Facility storm water treatment system will help reduce the discharge of pollutants. There will be no fiscal impact upon execution of this agreement.

Background
The Redlands Passenger Rail Project was designed to reintroduce passenger rail service along the existing railroad right-of-way (ROW), which is owned by San Bernardino County Transportation Authority (SBCTA) and links the City of San

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Bernardino in the west to the City of Redlands in the east. The entire Redlands corridor consists of approximately 9-miles of rail segment that extends from the San Bernardino Santa Fe Depot to the University of Redlands. This stretch of rail carries passengers on a route known as the Metrolink Arrow Service. Phase one of the project is recognized as Downtown San Bernardino Passenger Rail Project (DSBPRP) and/or “First Mile”, which involves the extension of the Metrolink regional passenger rail service. It is approximately one mile east from the existing San Bernardino Santa Fe Depot to the new Metrolink commuter rail platforms located near the intersection of Rialto and E Street.

The Rail Storage and Maintenance Facility (aka “Arrow Maintenance Facility”) property is owned by San Bernardino County Transportation Authority (SBCTA). The property was purchased from BNSF in the 1990s along with other assets used for Metrolink operations. The facility functions as a light maintenance facility for Metrolink services provided by the Southern California Regional Rail Authority (SCRRA). As part of the Redlands Rail Project, the site was reconstructed to maintain the new Diesel Multiple Units (DMU’s) that are used to provide the Metrolink Arrow Service.

Discussion
The National Pollutant Discharge Elimination (NPDES) Permit requires post- construction Best Management Practices (BMPs) to be implemented for both private and public new development projects. The Water Quality Management Plan (WQMP) are designed to help treat storm water before its release back into the ground by maximizing onsite infiltration and source-control BMPs.

To support preparation of WQMPs, the area-wide NPDES program established a Regional Water Quality Control Board (RWQCB) approved Model WQMP Guidance document. This document is required per the NPDES Permit and is used throughout San Bernardino County. The authorization of this agreement will ensure storm water compliance for post-construction pollution prevention requirements. 2021-2025 Strategic Targets and Goals
This project is consistent with Key Target No. 2d: Improved Quality of Life - Develop and implement a community engagement plan. This project will support this goal by developing and implementing a community engagement plan related to the project.

Fiscal Impact
There will be no fiscal impact to the City. SBCTA is required to perform inspections per the agreement which will ensure that regular maintenance is performed correctly per the WQMP maintenance plan.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager, or designee, execute the Rail Storage and Maintenance Facility (aka “Arrow Maintenance Facility”) Operation and

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Maintenance Covenant Agreement for Storm Water Treatment Devices and Control Measures between the City and San Bernardino County Transportation Authority (SBCTA) for the Water Quality Management Plan (WQMP).

Attachments
Attachment 1 Stormwater Treatment Device and Control Measure Access and Maintenance Agreement No. 23-1002838
Ward:

All Wards
Synopsis of Previous Council Actions:
6/3/2020 Resolution No. 2020-114 authorizing the City Manager to execute a Stormwater Treatment Device and Control
Measure Access and Maintenance Agreement between the
City of San Bernardino and the San Bernardino County
Transportation Authority (SBCTA) for the Water Quality
Management Plan (WQMP).

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CONSENT CALDENDAR
City of San Bernardino
Request for Council Action
Date: August 16, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager;
Daniel Hernandez, Agency Director of Public Works,
Operations and Maintenance
Department: Public Works
Subject: Amendment No. 4 to Agreement with ERSC for State Street Extension (Ward 6)
Recommendation:

It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager to execute Amendment No. 4 to the Professional Engineering Services Agreement with Engineering Resources of Southern California (ERSC), adding engineering and construction support services in the amount of $83,485 and increasing the purchase order to a total amount not- to-exceed of $349,995 for the State Street extension from Baseline Street to 16th Street.

Executive Summary:

Amendment No. 4 provides compensation for work that is already completed and allows ERSC to complete additional design services and provide construction support services for the State Street Extension. The services address conditions set by the Department of Water Resources (DWR), impacts from two Southern California Edison (SCE) power poles, add a 4-way stop, and provide landscaping improvements. These additional services go beyond the existing contract amount and require an additional $83,485.

Background
State Street is designated on the General Plan Circulation Element as a major arterial roadway. State Street currently does not exist between Foothill Boulevard and 16 th Street. During a December 2018 meeting, the Mayor and City Council members were informed that the total project cost is beyond the means of the City and federal/state grant funding will be needed to pay for the extension through the proposed area. The project was divided into four (4) phases, the first of which is currently in progress.

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On December 5, 2018, the Mayor and City Council adopted Resolution No. 2018- 310 approving an agreement with ERSC to provide Environmental Clearance under the California Environmental Quality Act (CEQA) and preparation of Plans, Specifications, and Estimates (PS&E) for State Street extension between Baseline Street and 16th Street in the amount of $204,533.

On December 4, 2019, the Mayor and City Council adopted Resolution 2019-347 approving the First Amendment to the Professional Services Agreement with ERSC to increase compensation by $24,681 for State Street extension. The amendment addressed requirements set by the Army Corps of Engineers regarding the Lytle Creek Levee, which weas not part of the original scope of work.

On September 2, 2020, the Mayor and City Council adopted Resolution 2020-214 approving the Second Amendment to the Professional Services Agreement with ERSC to increase compensation by $6,048 for State Street extension. The amendment addressed the request by the Department of Fish and Wildlife to complete a presence-absence survey for the San Bernardino Kangaroo Rat.

On June 1, 2022, the Mayor and City Council approved the Third Amendment to the Professional Services Agreement with ERSC to increase compensation by $31,248 for State Street extension. The amendment addressed additional work that was required to receive a permit due to an existing DWR waterline along State Street.

Discussion
The State Street Extension Project has a need for additional design and construction services. To prevent delays to this important project, City staff asked ERSC to complete services that are outside of their existing scope of work. Additional services were also requested to incorporate features not previously included in the project. Amendment No. 4 accounts the additional services and associated costs.

The additional services include:
•DWR Services – Cost $6,193
Due to an existing easement for a 108-inch DWR waterline along State Street, an encroachment permit was required prior to any street construction.

During the ongoing permitting process DWR imposed conditions to meet their coverage requirements for the existing waterline. This required modifications to the design. Work for this task has been completed.
•SCE Pole Services – Cost $18,210
Two SCE power poles were identified as causing an impact to the construction process. To complete the street improvements, the City requested that ERSC prepare designs for shoring and/or retaining walls for the two power poles. This includes additional plans, exhibits, details, and coordination efforts. Work for this task is currently ongoing.

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•Construction Services – Cost $10,000
ERSC was asked to provide construction support services for construction related questions that may arise during the project. This is an ongoing task that will continue through the construction phase of the project. •State Street and Handford Street Intersection Services – Cost $1,355 The City requested that ERSC include a 4-way stop at the State Street and Hanford Street intersection, which required modifications to the current set of plans. Work for this task has been completed.
•Median Landscape Services – Cost $47,727
The City requested that ERSC provide additional design services for landscaping and irrigation improvements along the median, parkway areas behind the sidewalk, and slopes along the extension. Work for this task has not commenced.

ERSC is providing the requested studies, designs, and construction support services, and is requesting compensation in the amount of $83,485 for a total contract compensation amount of $349,995.

Funding for additional design services will be provided through previously allocated funds for the project in the Regional Circulation System Development Impact Fees Fund, which has approximately $795,500 remaining. The additional design services are within the existing budget.
2021-2025 Strategic Targets and Goals
Authorization of this agreement aligns with Key Target No. 1e: Improved Operational & Financial Capacity – Minimize risk and litigation exposure. This project will construct public infrastructure in the City that will minimize the risk and ligation exposure upon completion of the street improvements.

Fiscal Impact
There is no General Fund Impact associated with this action.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager to execute Amendment No. 4 to the Professional Engineering Services Agreement with Engineering Resources of Southern California (ERSC), adding engineering and construction support services in the amount of $83,485 and increasing the purchase order to a total amount not- to-exceed of $349,995 for the State Street extension from Baseline Street to 16th Street.

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Attachments
Attachment 1 Amendment No. 4, ERSC
Attachment 2 Amendment No. 3, ERSC
Attachment 3 Amendment No. 2, ERSC
Attachment 4 Amendment No. 1, ERSC
Attachment 5 Original Agreement, ERSC
Ward:

Sixth Ward
Synopsis of Previous Council Actions:

June 20, 2018 Resolution No. 2018-189 adopted the City’s final budget document for Fiscal Year 2018/2019.

December 5, 2018 Resolution No. 2018-310 adopted agreement with ERSC to provide Environmental Clearance under the California
Environmental Quality Act (CEQA) and preparation of Plans, Specifications, and Estimate (PS&E) for State Street
Extension between Baseline Street and 16th Street.

December 4, 2019 Resolution No. 2019-347 adopted First Amendment to the Professional Services Agreement with ERSC.

September 2, 2020 Resolution No. 2020-214 adopted Second Amendment to the Professional Services Agreement with ERSC.

June 1, 2022 Approved Amendment No. 3 to the Professional Engineering Services Agreement with ERSC.

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AMENDMENT NO. 4 TO

THE PROFESSIONAL SERVICES AGREEMENT
WITH ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC.

FOR THE STATE STREET EXTENSION PROJECT
This Amendment No. 4 to the Professional Services Agreement is made and entered into as of August 16, 2023 ("Effective Date"), by and between the City of San Bernardino, a charter city and municipal corporation ("City") and Engineering Resources of Southern California, Inc., a California corporation ("Consultant"). City and Consultant are sometimes referred to herein individually as a "Party" and collectively as "Parties."

RECITALS
A. WHEREAS, the City and the Consultant have entered into an agreement, dated, December 5, 2018, for the purpose of providing professional environmental and civil design services for the State Street Extension Project (the "Original Agreement") .

B. WHEREAS, the City and Consultant have entered into an Amendment No. 1 to the Original Agreement, dated December 4, 2019, for the purpose of including additional funds for the performance of services under the Original Agreement.

C. WHEREAS, the City and Consultant have entered into an Amendment No. 2, dated September 2, 2020, for the purpose of including additional funds for the performance of services under the Original Agreement.

D. WHEREAS, the City and Consultant have entered into an Amendment No. 3, dated June 1, 2022, for the purpose of extending the term of the Original Agreement, adding additional services, and increasing the not- to-exceed amount to provide compensation for those additional services.

E. WHEREAS, the Parties now desire to amend the Original Agreement in to include additional services and to provide compensation for the additional services.

NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, conditions, and promises contained in this Amendment No. 4 and the Original Agreement, as previously amended, the Parties mutually agree as follows:

AGREEMENT

1. Incorporation of Recitals . The recitals listed above are true and

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correct and are hereby incorporated herein by this reference.

2. Services. The Scope of Services for the Original Agreement is hereby amended to include additional services as more particularly described in Exhibit “A-1”, attached hereto to this Amendment No. 4 and incorporated herein by this reference.

3. Compensation. The total not to exceed compensation amount shall be increased by Eighty-Three Thousand Four Hundred Eighty-Five Dollars ($83,485) increasing the total not to exceed compensation amount from Two Hundred Sixty-Six Thousand Five Hundred Ten Dollars ($266,510 ) to Three Hundred Forty-Nine Thousand Nine Hundred Ninety-Five Dollars ($349,995) .

4. Full Force. Except as amended by this Amendment No. 4, all provisions of the Original Agreement, as previously amended, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 4.

5. Electronic Transmission . A manually signed copy of this Amendment No. 4 which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment No. 4 for all purposes . This Amendment No. 4 may be signed using an electronic signature.

6. Counterparts. This Amendment No. 4 may be signed in counterparts, each of which shall constitute an original. [SIGNATURES ON FOLLOWING PAGE]

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SIGNATURE PAGE TO
AMENDMENT NO. 4 TO

DESIGN SERVICES AGREEMENT
WITH ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC.

IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No. 4 on the Effective Date first herein above written.

CITY OF SAN BERNARDINO CONSULTANT
APPROVED BY:ENGINEERING RESOURCES OF
SOUTHERN CALIFORNIA, INC.

Charles McNeely,
Interim City Manager Signature
APPROVED AS TO FORM: Name
Best Best & Krieger LLP
City Attorney
Title

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EXHIBIT A-1

SCOPE OF ADDITIONAL SERVICES
[ATTACHED]

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Page | 11861 W. Redlands Blvd., Redlands, CA 92373
T: (909) 890-1255 | F: (909) 890-0995 | erscinc.com
July 24, 2023
Okan Demirci, PE
City of San Bernardino
Department of Public Works
201 N. “E” Street, 2nd Floor
San Bernardino, CA 92401
REDLANDS | TEMECULA | PALM DESERT
RE: Request for Additional Services for the State Street Extension from Baseline Street to 16 th Street – SCE Distribution, DWR, Construction Services and Landscape PS&E Dear Mr. Demirci,
ERSC is respectfully requesting additional funds for providing Professional Services to cover work already performed at the request of the City, in addition to the recently requested service to prepare PS&E for landscaping the new median in State Street. The service request and associated costs are detailed below.

DWR Services
ERSC prepared 100% PS&E for the State Street Extension Project. Prior to advertising the project, the Department of Water Resources (DWR) submitted a list of comments that resulted in the profile of State Street to be lowered to meet min/max coverage over DWR’s 108” waterline. ERSC continued working on the plans during the preparation of an extra services request, which was ultimately granted by the City Engineer. However, the extent of the revisions to the plans did cause ERSC to run over the requested amount. The requested amount is for work performed to modify the plans in order to obtain a permit from DWR to construct within their right of way.

Total Cost = $6,193.00
SCE Pole Design Services
The City advertised and bid the project and proceeded with construction. In April, 2023 during construction operations, conflicts with existing SCE poles came to light due to the lowering of the roadway to accommodate DWR’s waterline. One pole is a distribution pole with the identification of pole #1371379E and the other is a transmission pole with identification of pole # 4199460E. Site visits and Teams meetings with SCE followed to work out possible solutions of reinforcing the SCE poles until relocation of the poles by SCE could be accomplished. Revised roadway plans with temporary curb and gutter transitions in order to allow sidewalk to be constructed were submitted to the City and several iterations of structural calculations to reinforce the stability of the poles has been submitted to SCE for their approval. Coordination in ongoing with SCE.

Total Cost = $18,210.00
Construction Services
In addition to providing professional engineering services for DWR and SCE, ERSC has been requested to provide Construction Support Services for this project as it was not part of our original contract.

Therefore, ERSC will continue to provide construction support which will include answering Requests for Information (RFIs), assisting the City in preparing Change Orders (COs), visiting the site to provide technical

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Page | 21861 W. Redlands Blvd., Redlands, CA 92373
T: (909) 890-1255 | F: (909) 890-0995 | erscinc.com
RE: Request for Additional Services for the State Street Extension from Baseline Street to 16th Street – SCE Distribution, DWR, Construction Services and Landscape PS&E July 24, 2023
support, attendance at meetings regarding construction related items, preparation of As-Built plans and other related items as requested. A lump sum amount is requested and only hours spent on this task will be billed against the total.

Lump Sum = $10,000.00
Modification to State Street and Hanford Street Intersection The City has requested ERSC to modify the current set of construction plans to include a 4-way stop at the State Street and Hanford Street intersection. ERSC will modify the current set of plans to incorporate striping and signage per the current edition of the MUTCD and cloud the changes and issue a delta revision on the appropriate sheets.

Total Cost = $1,355.00
Median Landscape Services
In early July 2023, the City requested ERSC to provide a conceptual cost for Professional Services to prepare landscape and irrigation PS & E, in addition to conceptual construction costs of the landscape and irrigation of the newly constructed median, parkway areas behind sidewalk and slopes along the State Street Extension. Upon receipt and review of these items ERSC was asked to prepare a formal cost proposal to include these design services in the pending request for additional services.

ERSC’s team will prepare PS&E for the median, parkway area behind the sidewalk and slopes on the south end of the project for the project limits. The plans will identify water service point of connection with necessary waterline plans, service crossings to the median, planting plans and irrigation plans. These will be submitted to the City at 60%, 90% and 100% completion or at intervals determined necessary by the City. Services will also include assistance in advertising, bidding and construction support.

Total Cost = $47,727
Should you have any questions regarding the tasks and costs listed, you may contact me at [email protected] or at (909) 890-1255.

Respectfully submitted,
Lori J. Askew
Project Manager

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EXHIBIT A
AMENDMENT NO. 3 TO

THE AGREEMENT FOR PROFESSIONAL ENVIRONMENTAL AND

CIVIL ENGINEERING DESIGN SERVICES FOR THE

STATE STREET EXTENSION PROJECT WITH
ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC.

This Amendment No. 3 to the Agreement for Professional Environmental and Civil Engineering Design Services is made and entered into as of June 11 2022 ("Effective Date"), by and between the City of San Bernardino, a charter city and municipal corporation ("City") and Engineering Resources of Southern California, Inc. (ERSC), a California company ("Consultant"). City and Consultant are sometimes referred to herein individually as a "Party" and collectively as "Parties."

B. WHEREAS, the City and the Consultant have entered into an Amendment No. 1 to the Master Agreement, dated December 4, 2019, for the purpose of including additional funds for the performance of services under the Master Agreement.

C. WHEREAS, the City and the Consultant have entered into an Amendment No. 2, dated September 2, 2020, for the purpose of including additional funds for the performance of services under the Master Agreement.

D. WHEREAS, the agreement with ERSC has expired and needs to be extended to December 31, 2024, in order to complete the additional services required by the Department of Water Resources,
E. WHEREAS, the Parties now desire to amend the Master Agreement in order to alter the term provisions to provide compensation for additional design services and progress meetings.

NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, conditions, and promises contained in this Amendment No. 3 and the Master Agreement, the Parties mutually agree as follows:

AGREEMENT

1. Incorporation of Recitals. The recitals listed above are true and correct and are hereby incorporated herein by this reference.

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2. Services. The Scope of Services for the Master Agreement is hereby amended to include services required to address comments provided by the California Department of Water Resources. The additional services are more fully described in Exhibit "A" - Scope of Services for ERSC.

3. Amendment to Section 6 - Term. Section 6 - Term of the Master Agreement shall be amended to read as follows:

4. Term. This Agreement shall commence on the Effective Date and continue through December 31, 2024, unless the Agreement is earlier terminated as provided for herein ('Term ").

5. Compensation. The total not to exceed compensation amount shall be increased by Thirty-One Thousand Two Hundred Forty-Eight Dollars ($31,248.00) increasing the total not to exceed compensation amount from Two Hundred Thirty-Five Thousand Two Hundred Sixty-Two Dollars ($235,262.00) to Two Hundred Sixty-Six Thousand Five Hundred Ten Dollars ($266,510. 00).

6. Full Force. Except as amended by this Amendment No. 3, all provisions of the Master Agreement, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 3.

7. Electronic Transmission. A manually signed copy of this Amendment No. 3 which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment No. 3 for all purposes. This Amendment No. 3 may be signed using an electronic signature.

8. Counterparts. This Amendment No. 3 may be signed in counterparts, each of which shall constitute an original.
[SIGNATURES ON FOLLOWING PAGE]

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SIGNATURE PAGE FOR
AMENDMENT NO. 3 TO THE PROFESSIONAL ENVIRONMENTAL AND

CIVIL ENGINEERING DESIGN SERVICES AGREEMENT

FOR THE STATE STREET EXTENSION PROJECT
WITH ENGINEERING RESOURCES OF SOUTHERN CALIFORNIA, INC.

IN WITNESS WHEREOF , the Parties hereto have executed this Amendment No. 3 on the Effective Date first herein above written .

CITY OF SAN BERNARDINO
AP~ VEDB:;Z

IG-/) ,/J
Robert D. Field,
City Manager
APPROVED AS TO ~
...-,:::::::::- -
Best Best & Krieger L
City Attorney

CONSULTANT

ENGINEE RESOURCES OF
sour ORNIA, INC.

Name
Title

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: August 16, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager;
Daniel Hernandez, Agency Director of Public Works,
Operations, and Maintenance
Department: Public Works
Subject: Agreement with Vulcan Materials Company
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino, California:

1. Authorize the Interim City Manager to execute a Goods Services Agreement with Vulcan Materials Company for the purchase of asphalt concrete materials and related supplies; and

2. Authorize the Agency Director of Administrative Services to issue a purchase order not to exceed the amount of $100,000.

Executive Summary
A purchase order in the amount of $100,000 is requested for the purchase of asphalt materials from Vulcan Materials, Inc. of San Bernardino. These materials are utilized for the maintenance of City streets, such as, pothole and minor street deterioration repairs. This amount is consistent with the projected tonnage required for this fiscal year.

Background
The Operations and Maintenance Division (O&M) of the Public Works Department is responsible for the maintenance, repair, beautification, and clean-up of City-owned infrastructure and rights of way. In conjunction with the Engineering Division of Public Works, it is also responsible for ensuring the City’s streets and traffic intersections are properly maintained, inspected, upgraded, and repaired as needed. This includes the

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repair of asphalt streets with potholes or street deterioration. These repairs are largely performed by in-house staff from the Streets work section with the use of asphalt concrete material.

Discussion
The City of San Bernardino has approximately 62 square miles within its city limits and more than 534 center lane miles for which maintenance and repair of asphalt streets is routinely required. Key to this work is the use of asphalt concrete material which is primarily used for pothole patching and hot mix asphalt segment repairs. In this past year, the amount of asphalt materials exceeded the typical amount used in average years, but this was largely due to a non-typical rainy season. In general, a purchase order in the amount of $100,000 is sufficient for asphalt concrete materials required in any average year. Staff anticipates a return to an average use of materials for this current fiscal year and is requesting a purchase order in the amount of $100,000 for asphalt concrete materials.

The Operations and Maintenance Division of Public Works worked with the Finance Department, and, in May of 2023, a formal bid process was initiated to solicit quotes for asphalt concrete materials in Request for Quotes No. F-23-41. Notices were posted on the City’s website.

The results of the request for quotes yielded two qualified vendors with Vulcan Materials Company providing the lowest bid amount per unit cost. It is important to note that the cost sheet below reflects the average cost amount per ton for the most-used materials requested (1/2 inch and 3/8-inch materials). Additional quotes for other materials were also requested for which Vulcan Materials provided the lowest quotes.

Table 1. Results of Request for Quotes and Cost
Vendor City Cost Per Ton
Vulcan Materials Co. San Bernardino, CA $87.15
Manhole Adjusting, Inc. Pico Rivera, CA $98.00
Staff is confident Vulcan Materials Company is qualified to provide the required materials and has ensured they have met all City vendor requirements. In addition, Vulcan Materials Company is based in San Bernardino and has provided materials and services to the City in recent years.

2021-2025 Strategic Targets and Goals
This project is consistent with several goals and targets. It is aligned with Goal No. 3: Improved Quality of Life. This maintenance service agreement will ensure City streets, are kept in proper working order free of hazards. It will also enhance safety for our residents and improve the quality of life.

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Fiscal Impact
The Gas Tax fund impact is $100,000 and is appropriated in the FY2023/24 budget. There is no General Fund impact with this action. Sufficient budget exists in the department for this agreement, and it will continue to be programmed annually for the four additional option years.

Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California:

1. Authorize the Interim City Manager to execute a Goods Services Agreement with Vulcan Materials Company for the purchase of asphalt concrete materials and related supplies; and

2. Authorize the Agency Director of Administrative Services to issue a purchase order not to exceed the amount of $100,000.

Attachments
Attachment 1 Goods Services Agreement
Attachment 2 Bid Documents - RFQ No. 23-41
Ward:

All Wards
Synopsis of Previous Council Actions:

September 19, 2018 – Resolution No 2018-255 Authorizing the execution of an annual purchase order with Vulcan Materials Company for the purchase of Asphalt Concrete Materials.

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CITY OF SAN BERNARDINO

GOODS PURCHASE AGREEMENT
This Goods Purchase Agreement (“Agreement”) is entered into this 16th day of August, 2023, by and between the City of San Bernardino, a charter city and municipal corporation organized under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401, County of San Bernardino, State of California (“City”), and VULCAN MATERIALS COMPANY a, CALIFORNIA CORPORATION, with its principal place of business at 16013 FOOTHILL BOULEVARD, IRWINDALE, CALIFORNIA 91702 (“Supplier”). City and Supplier are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

Section 1. DEFINITIONS.

Section 3. INSPECTIONS AND TESTS.

Section 4. WARRANTY.

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
further warrants that any services provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.

1. Repair the defective Goods;

2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or

3. Repay to City the purchase price of the defective Goods.

D. Supplier also warrants that the Goods is free and clear of all liens and encumbrances whatsoever, that Supplier has a good and marketable title to same, and that Supplier owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Supplier agrees to indemnify, defend, and hold City harmless against any and all third-party claims resulting from the breach or inaccuracy of any of the foregoing warranties.

Section 5. PRICES.

Unless expressly provided otherwise, all prices and fees specified in Exhibit “C,” attached hereto and incorporated herein by reference, are firm and shall not be subject to change without the written approval of City. No extra charges of any kind will be allowed unless specifically agreed to in writing by City’s authorized representative. The total price shall include (i) all federal, state, and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Goods furnished to City hereunder; and (ii) all charges for packing, freight, and transportation to destination.

Section 6. CHANGES.

City, at any time, by a written order, and without notice to any surety, may make changes in the Goods, including but not limited to, City’s requirements and specifications. If such changes affect

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
the cost of the Goods or time required for its performance, an equitable adjustment will be made in the price or time for performance or both. Any change in the price necessitated by such change will be agreed upon between City and Supplier and such change will be authorized by a change order document signed by City and accepted by Supplier.

Section 7. PAYMENTS.

C. Payments otherwise due may be withheld by City on account of defective Goods not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens or other claims, failure of Supplier to make payments properly to its subcontractors or for material or labor, the failure of Supplier to perform any of its other obligations under the Agreement, or to protect City against any liability arising out of Supplier’s failure to pay or discharge taxes or other obligations. If the causes for which payment is withheld are removed, the withheld payments will be made promptly.

If the said causes are not removed within a reasonable period after written notice, City may remove them at Supplier’s expense.

D. Payment of the final Progress Milestone payment or any retention will be made by City upon:

1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the Progress Milestone;

2. Written acceptance of the Goods by City;

3. Delivery of all drawings and specifications, if required by City;

4. Delivery of executed full releases of any and all liens arising out of this Agreement; and

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
If any person refuses to furnish an actual release or receipt in full, Supplier may furnish a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.

Section 8. SCHEDULE FOR DELIVERY.

A. The time of Supplier’s performance is of the essence for this Agreement. The Goods will be delivered in accordance with the schedule set forth in Exhibit “B.” Supplier must immediately notify City in writing any time delivery is behind schedule or may not be completed on schedule. In addition to any other rights City may have under this Agreement or at law, Supplier shall pay City the sum of $10.00 per item of Goods for each calendar day for which the item of Goods is unavailable beyond the scheduled delivery date(s) specified in Exhibit “B.” B. In the event that the Goods is part of a larger project or projects that require the coordination of multiple contractors or suppliers, then Supplier will fully cooperate in scheduling the delivery so that City can maximize the efficient completion of such project(s).

Section 9. TAXES.

B. Supplier will withhold, and require its subcontractors, where applicable, to withhold all required taxes and contributions of any federal, state, or local taxing authority which is measured by wages, salaries or other remuneration of its employees or the employees of its subcontractors.

Supplier will deposit, or cause to be deposited, in a timely manner with the appropriate taxing authorities all amounts required to be withheld.

D. Supplier will, upon written request, submit to City written evidence of any filings or payments of all taxes required to be paid by Supplier hereunder.

Section 10. INDEPENDENT CONTRACTOR.

Supplier enters into this Agreement as an independent contractor and not as an employee of City. Supplier shall have no power or authority by this Agreement to bind City in any respect.

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the Supplier are employees, agents, contractors or subcontractors of the Supplier and not of City. City shall not be obligated in any way to pay any wage claims or other claims made against Supplier by any such employees, agents, contractors or subcontractors or any other person resulting from performance of this Agreement.

Section 11. SUBCONTRACTS.

Section 12. TITLE AND RISK OF LOSS.

Unless otherwise agreed, City will have title to, and risk of loss of, all completed and partially completed portions of the Goods upon delivery, as well as materials delivered to and stored on City property which are intended to become a part of the Goods. However, Supplier will be liable for any loss or damage to the Goods and/or the materials caused by Supplier or its subcontractors, their agents or employees, and Supplier will replace, or repair said Goods or materials at its own cost to the complete satisfaction of City. Notwithstanding the foregoing, in the event that the City has paid Supplier for all or a portion of the Goods which remains in the possession of Supplier, then City shall have title to, and the right to take possession of, such Goods at any time following payment therefor.

Risk of loss for any Goods which remains in the possession of Supplier shall remain with Supplier until such Goods has been delivered or City has taken possession thereof. Supplier will have risk of loss or damage to Supplier’s property used in the construction of the Goods, but which does not become a part of the Goods.

Section 13. INDEMNIFICATION.

Supplier shall reimburse City and its officials, officers, employees, agents, and/or volunteers, for any

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided.

C. Supplier’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers.

Section 14. INSURANCE.

A. General. Supplier shall take out and maintain:

3. Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and

4. Pollution Liability Insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate shall be provided by the Supplier if transporting hazardous materials.

C. Insurance Carrier. All insurance required under this Section is to be placed with insurers with a current A.M. Best’s rating no less than A-: VII, licensed to do business in California, and satisfactory to the City.

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
endorsements must be received and approved by the City before delivery commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

F. Freight. Supplier shall ensure that third party shippers contracted by Supplier have adequate insurance coverage for the shipped Goods.

Section 15. LIENS.

Section 16. TERMINATION OF AGREEMENT BY CITY.

A. Should Supplier at any time refuse or fail to deliver the Goods with promptness and diligence, or to perform any of its other obligations under the Agreement, City may terminate Supplier’s right to proceed with the delivery of the Goods by written notice to Supplier. In such event City may obtain the Goods by whatever method it may deem expedient, including the hiring of another contractor or other contractors and, for that purpose, may take possession of all materials, machinery, equipment, tools, and appliances and exercise all rights, options and privileges of Supplier. In such case Supplier will not be entitled to receive any further payments until the Goods is delivered. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Agreement, Supplier will be liable for and will pay the difference to City.

C. On receipt of notice under Section 16.B, Supplier will, with respect to the portion of the Goods terminated, unless the notice states otherwise,

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41

1. Immediately discontinue such portion of the Goods and the placing of orders for materials, facilities, and supplies in connection with the Goods,

2. Unless otherwise directed by City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and

Section 18. MISCELLANEOUS PROVISIONS.

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
CITY:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: ERNESTO SALINAS
With Copy To:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
SUPPLIER:

Vulcan Materials Company
16013 Foothill Boulevard
Irwindale, CA 91702
Attn: JOELLE DONALDSON
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

C. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.

D. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

F. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
I. No Third Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.

L. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

M. City’s Right to Employ Other Suppliers. City reserves its right to employ other contractors in connection with the Goods.

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41

SIGNATURE PAGE TO GOODS PURCHASE AGREEMENT

BETWEEN THE CITY OF SAN BERNARDINO

AND VULCAN MATERIALS COMPANY
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written.

CITY OF SAN BERNARDINO
APPROVED BY:

CHARLES E. McNEELY
Interim City Manager
ATTESTED BY:

GENOVEVA ROCHA, CMC
City Clerk
APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney

VULCAN MATERIALS COMPANY
Signature
Name
Title

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
Exhibit A
Goods Specifications
Item No. Description Quantity
ST ¾ MM
PG64-10

SAN BERNARDINO HMA
PRODUCT 22084
1 TONS

STD FRT
RATE
ST 1/2 MM
PG64-10

SAN BERNARDINO HMA
PRODUCT 320807
1 TONS

STD FRT
RATE
203 E
PG64-10

SAN BERNARDINO HMA
PRODUCT 400807
1 TONS

STD FRT
RATE
ST3/8 M
PG70-10

SAN BERNARDINO HMA
PRODUCT 420808
1 TONS

STD FRT
RATE
SHEET
MIX
PG70-10

SAN BERNARDINO HMA
PRODUCT 551502
1 TONS

STD FRT
RATE
SS-1 OIL

GALLONS

W/BUCKET

SAN BERNARDINO HMA
PRODUCT 9E0200
1 TONS

STD FRT
RATE
SS 1H/GAL SAN BERNARDINO HMA
PRODUCT 9E0300
1 GA STD

FRT RATE

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
Exhibit B
Delivery Schedule
Item Delivery Schedule
Cold Mix and Related Materials 24 to 48 hours
Hot Mix and Related Materials 24 to 48 hours

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
Exhibit C
Fee Schedule
City will pay invoices within 30 days of receipt at the below prices.

Item No. Description Quantity Unit Cost Total Amount
ST ¾ MM
PG64-10

SAN BERNARDINO HMA
PRODUCT 22084
1 TONS

STD FRT
RATE

72.00 87.15
ST 1/2 MM
PG64-10

SAN BERNARDINO HMA
PRODUCT 320807
1 TONS

STD FRT
RATE

72.00 87.15
203 E
PG64-10

SAN BERNARDINO HMA
PRODUCT 400807
1 TONS

STD FRT
RATE

82.50 98.57
ST3/8 M
PG70-10

SAN BERNARDINO HMA
PRODUCT 420808
1 TONS

STD FRT
RATE

82.50 98.57
SHEET
MIX
PG70-10

SAN BERNARDINO HMA
PRODUCT 551502
1 TONS

STD FRT
RATE

82.50 98.57
SS-1 OIL

GALLONS

W/BUCKET

SAN BERNARDINO HMA
PRODUCT 9E0200
1 TONS

STD FRT
RATE

70.00 81.13
SS 1H/GAL SAN BERNARDINO HMA
PRODUCT 9E0300
1 GA STD
FRT RATE 10.00 19.73

TOTAL VENDOR QUOTE

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
ATTACHMENT “C”

VENDOR QUOTE FORM
VENDOR NAME: VULCAN MATERIALS COMPANY
ADDRESS: 16013 FOOTHILL BOULEVARD, IRWINDALE, CA 91702 PHONE: (951) 316-4069
The undersigned, hereby declare that they have carefully examined the location of the proposed work, familiarized themselves with the local conditions affecting the cost of the work, and have read and examined the terms and conditions for the following Project:

ASPHALT MATERIALS
The undersigned, hereby propose to furnish all labor, materials, equipment, tools, transportation, and services, and to discharge all duties and obligations necessary and required to perform and complete the Project in strict accordance with the Vendor Price Quote for the ELECTRONICALLY SUBMITTED TOTAL VENDOR QUOTE PRICE.

Item No. Description Quantity Unit Cost Total Amount
ST ¾ MM
PG64-10

SAN BERNARDINO HMA
PRODUCT 22084
1 TONS

STD FRT
RATE

72.00 87.15
ST 1/2 MM
PG64-10

SAN BERNARDINO HMA
PRODUCT 320807
1 TONS

STD FRT
RATE

72.00 87.15
203 E
PG64-10

SAN BERNARDINO HMA
PRODUCT 400807
1 TONS

STD FRT
RATE

82.50 98.57
ST3/8 M
PG70-10

SAN BERNARDINO HMA
PRODUCT 420808
1 TONS

STD FRT
RATE

82.50 98.57
SHEET
MIX
PG70-10

SAN BERNARDINO HMA
PRODUCT 551502
1 TONS

STD FRT
RATE

82.50 98.57
SS-1 OIL

GALLONS

W/BUCKET

SAN BERNARDINO HMA
PRODUCT 9E0200
1 TONS

STD FRT
RATE

70.00 81.13
SS 1H/GAL SAN BERNARDINO HMA
PRODUCT 9E0300
1 GA STD
FRT RATE 10.00 19.73

TOTAL VENDOR QUOTE
Total Number of Additional Pages: 2

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41
I hereby declare under penalty of perjury that the foregoing is true and correct.

Submitted By: Title:
(Authorized Representative Signature)
Print Name:

Contractor’s License Number and Classification:

DIR Registration Number (if applicable): _____________________________

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REQUEST FOR VENDOR QUOTES
FOR

CITY OF SAN BERNARDINO
FOR
ASPHALT MATERIALS RFQ F-23-41

CITY OF SAN BERNARDINO
290 North D Street
San Bernardino, California 92401
Telephone: (909) 384-7272
https://www.ci.san-bernardino.ca.us/

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41

REQUEST FOR VENDOR PRICE QUOTES
PROJECT NO. RFQ F-23-41

ASPHALT MATERIALS

PUBLIC NOTICE IS HEREBY GIVEN th at vendor price quotes (“Quotes”) will be received by the City of San Bernardino (“City”) electronically through the City’s online bid management provider (“PlanetBids”), until 3:00 PM, Tuesday, May 16, 2023. Quotes may NOT be submitted by fax, email, tel ephone, mail, hand delivery, or other means; any Quotes received through any means other th an PlanetBids will be returned to the Vendor unopened.

The award of this contract is subject to available budget adequate to carry out the provisions of the propose d agreement including the identified scope of work. The City reserves the right to reject any or all Quotes.

The City is committed to inclusion and diversity and welcomes proposals and bids from contractors, consultants, and vendors of all faiths, creeds, ancestries, and ethnicities without regard to disability, gender identity, sexual orientation, or immigration status. The City condemns and will not tolerate prejudice, racism, bigotry, hatred, bullying, or violence towards any group within or outside of our community.

I. REQUEST FOR QUOTES
The City is requesting Quotes from qualified vendors 1 (“Vendors”) for Asphalt Material s (“Project/Equipment”). To serve and promote the welfare of it s residents, the City intends to procure the Project/Equipment, as described below.

ASPHALT MATERIALS

A. Scope of Work/Services
The Project/Equipment sought under this request are set forth in m ore detail in Attachment “A”, attached hereto and incorporated herein by this reference. Notwithstanding the inclusion of such Project/Equipment in Attachment “A”, the final scope of Proje ct/Equipment negotiated between City and the successful Vendor shal l be set forth in the Goods Purchase Agreement (“Agreement”) executed by and between City and the successful Vendor. A copy of the Agreement is attached hereto as Attachment “B” and incorporated herein by this reference.

B. Project Manager
The Project M anager for th e City regarding this reques t will be Mayra Calderon, Buyer, Purchasing Department, [email protected] or a designated representative, who will coordinate t he assistance to be provided by the City to the Vendor.

C. Requests for Clarification
All questions, requests for interpretations or clarifications, either administrative or technical must be requested in writing and will be answered in writing through PlanetBids. To ensure a response, questions must be received in writing no later than May 11, 2023, by 3:00PM by local time.

D. Meeting
For this request, there is no meeting

1Use of the term “Vendor(s)” shall mean individual proprietorship, partnership, Limited Liability Company, corporation or joint venture.

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Project No. RFQ F-23-41

E. Site Examination
Vendors may visit the City and its physical facilities to determine the local conditions which may in any way affect the performance of the work; shall familiarize themselves with all federal, state and local laws, ordinances, rules, regulations, and codes affecting the pe rformance of the Project/Equipment; make such investigations, as it may deem necessary for performance of the Project/Equipment at its Quote within the terms of the Agreement; and correlate its observations, investigations, and determinations with the requirements of the Agreement.

F. Submittal Requirements of Vendor Price Quote
The Quote must be received no later than 3:00pm local time, on or before May 16, 2023, through PlanetBids. It is solely the responsibility of Vendor to see that its Quot e is properly submitted to PlanetBids in proper form and prior to the stated closing time. PlanetBids will not ac cept late Quotes. The City will only consider Quotes that have transmitted successfully and have been issued a c onfirmation number with a tim e stamp from PlanetBids indicating that the Quote was submitted successfully.

Vendors experiencing any technical difficulties with the Quote submission process may contact PlanetBids Support at (818) 992-1771. Neither the City nor PlanetBids make any guarantee as to t he timely availability of assistance or assurance that any given problem will be resolved by the Quote submission date and/or time.

Vendors to provide a Quote for the scope of Project/Equipment as set forth in in the Vendor Quote Form attached hereto as Attachment “C” and incorporated herein by this ref erence.. Vendors submitting a Quote agree to furnish services to the City i n accordance with the Quote submitted, and to be bound by the terms and conditions of this Request for Vendor Price Quote. Vendor is certifying that it takes no exceptions to the request, including but not limited to, the Agreement.

G. Selection Process
The City will evaluate and award to the responsible Vendor offering the needed quality of supply or work or service at the lowest quotation or determined to be in the best interest of the City. During th e evaluation process, the City reserves the right, to request additional information or clarifications from Vendors, or to allow corrections of errors or omissions.

H. General Conditions

1. General: It is solely the responsibility of the V endor to see that its Quote is properly submitted to PlanetBids in proper f orm and prior to the stated closing time. PlanetBids will not accept late Quotes.

2. Amendments to Request: The City reserves the right to amend the request or issue to all Vendors addenda to answer questions for clarification.

3. Non-Responsive Quotes: A Quote may be considered non-responsive if conditional or incomplete.

4. Costs for Preparing: The City will not compensate any Vendor for the cost of preparing any Quote, and all materials submitted with a Quote shall become the property of the City. The City will retain all Quotes submitted and may use any idea in a Quote regardless of whether that Quote is selected.

5. Price Validity: Quotes provided by Proposers in response to this request are valid for 180 days from the due date. The City intends to award t he Agreement within this time but may request an extension from the Vendors to hold pricing, until negotiations are complete and the Agreement is awarded.

6. Availability to Perform Work: Vendor must be available to begin Project/Equipment within 14 working days of the contract being awarded and must complete all Project/Equipment wi thin 180 “working” or “calendar” days.

7. Additional Costs to Perform Work/Services: The Vendor’s Quote is inclusive of all cost and applicable taxes. Vendor is responsible for all building permit fees, applicable renderings, plans,

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documentation and fees required by the Agreement. Vendor will be required to maintain at its own cost the necessary insurance as required by the Agreement and a City business license.

8. Vendor License: Pursuant to Section 7028.15 of the Business and Professions Code and Section 3300 of the Public Contract Code, all Vendors must possess proper licenses for performance of this Agreement in the following classification(s): Subcontractors must possess the appropriate licenses for specialty work. Pursuant to Section 7028.5 of the Business and Professions Code , the City shall consider any Quote submitted by a Vendor not currently licensed in accordance with state law to be nonresponsive. The City shall have the right to request, and proposers shall provide within five (5) calendar days, evidence satisfactory to the City of all valid lic ense(s) currently held by Vendor and each of the Vendor’s subcontractors before awarding the Agreement.

[END OF SECTION]

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ATTACHMENT “A”

PROPOSED SCOPE OF PROJECT/EQUIPMENT SERVICES
The Vendor will furnish all materials, render ings, equipment, tools, re moval, installation, l abor, coordination, permits, supervision, freight, and incidentals (including tax) as necessary to perform and complete the project pursuant to the Request for Vendor Quotes and the Agreement. The following is a non-inclusive description of the project work and/or goods to be provided.

ASHPALT MATERIALS

A. Background

The Public Works Department, Operations and Maintenance Division is re sponsible for maintaining all street and paved alley ways in the City. The intent of this docum ent is to solicit quotes from qualified vendors with e xperience in providing Asphalt Materi als for purchase. The City is looking for the most responsive and re sponsible vendor that will be comm itted to pr ovide the best level of Asphalt Materials. Through a competitive qualification and bid based procurement process, the City of San Bernardino intend s to enter into an agre ement with a qualified vendor for purchase of Asp halt Materials. The successful vendor shall be awarded a 1-year agreement with a (4) 1 year option to extend.

B. Reference List

Provide three (3) local government agencies and/or company's previous or current contact references that support your ability to provide generator maintenance services.

C. Licenses

The vendor represents that it has all licenses including a contractor license, permits, qualifications and approvals of whatever nature that are legally required to provide asphalt materials, including a City Business License, and that such licenses and approvals shall be maintained t hroughout the term of this Contract.

C. Vendor Non-Compliance

If the Public Works Department Director, or his designee, determines that there are deficiencies in the performance of this Agreement, the Public Works Department Director, or his designee, w ill provide a written notice to the vendor stating the deficiencies and specifying a t ime frame to correct the specified deficiencies. This time frame shall be reasonable, as determined by the Public Works Department Director, or his designee, to correct the specified deficiencies.

Should the vendor fail to correct any deficiencies within t he stated time frame, the Public Works Department Director, or his designee, may exercise the following measures:

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1. Impose a deficiency deduction and deduct from the vendor’s payment the amount necessary to correct the deficiency, including City overhead costs.

2. Withhold the entire or partial payment.

3. Terminate the contract and award to second bidder.

D. Services

Bidder shall complete right hand column indicating brief reasons for exceptions to requirements when not acceptable. State “Acceptable” if requirements are agreeable as set forth in left-hand column. *Failure to complete right-hand column will invalidate bid*

Item Unit Price
Pick Up Only
• 3/8 inch Per Ton

• ½ inch Per Ton

• ¾ inch Per Ton

• Tack Coat Per Gallon

Delivery to Job Site
• 3/8 inch 12-ton Delivery

• ½ inch 12-ton Delivery

• ¾ inch 12-ton Delivery

Please indicate any elements of the Technical Specifications that cannot be met by your firm:

Have you included in your bid all informational items and forms as requested? Yes / No (circle one).

If you answered "No", please explain:

This offer shall remain firm for 90 days from RFQ close date.

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ATTACHMENT “B”

CITY OF SAN BERNARDINO

GOODS PURCHASE AGREEMENT
This Goods Purchase Agreement (“Agreement”) is entered into this [***INSERT DAY***] day of [***INSERT MONTH***] , 2021, by and between the City of San Bernardino, a charter city and municipal corporation organized under the law s of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, California 92401, County of San Bernardino, State of California (“City”), and [***INSERT NAME***], a [***INSERT TYPE OF ENTITY - CORPORATION, PARTNERSHIP, SOLE PROPRIETORSHIP OR OTHER LEGAL ENTITY***] with its principal place of business at [***INSERT ADDRESS***] (“Supplier”). City and Supplier are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

Section 1. DEFINITIONS.

When Exhibit “A” specifies machinery, equipment or material by manufacturer, model or trade name, no substitution will be made without City’s written approval. Machinery, equipment or material installed in the Goods without the approval re quired by this Section 2 will be deemed to be defective material for purposes of Section 4 . Where machinery, equipment or materials are referred to in Exhibit “A” as equal to any particular standard, City will decide the questi on of equality. When requested by City, Supplier will furnish City with the name of the manufacturer, the performance capabilities and other pertinent information necessary to properly determine the quality and suitability of any machines, equipment and m aterial to be incorporated in the Goods. Material samples will be submitted at City’s request.

Section 3. INSPECTIONS AND TESTS.

City shall have the right to inspect and/or test the Goods prior to acceptance. If upon inspection or testing the Goods or any portion thereof are found to be nonconforming, unsatisfactory, defective, of inferior quality or workmanship, or fail to meet any requirements or specifications contained in Exhibit “A,” then without prejudice to any other rights or remedies, City may reject the Goods or exercise any of its rights under Section 4.C. The inspection, failure to make inspection, acceptance of goods, or payment for goods shall not impair City’s right to reject nonconforming goods, irrespect ive of City’s failure to notify Supplier of a rejection of nonconforming goods or revocation of acceptance thereof or to specify with particularity any defect in nonconforming goods after rejection or acceptance thereof.

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Section 4. WARRANTY.

A. Supplier warrants that th e Goods will be of merchantable quality and free from defects in design, engineering, material, and workmanship for a period of two (2) years, or such longer period as provided by a manufacturer’s warranty or as agreed to by Supplier and City, from the date of final written acceptance of the Goods by City as required for final payment under Section 7 . Supplier further warrants that any services provided in connection with the Goods will be performed in a professional and workmanlike manner and in accordance with the highest industry standards.

B. Supplier further warrants that all machinery, equipment , or process included in the Goods will meet the performance requirements and specifications specified in Exhibit “A” and shall be fit for the purpose intended. City’s inspection, testing, approval , or acceptance of any such machinery, equipment, or process will not relieve Supplier of its obligations under this Section 4.B.

1. Repair the defective Goods;

2. Replace the defective Goods with conforming Goods, F.O.B. City’s plant, office or other location of City where the Goods was originally performed or delivered; or

3. Repay to City the purchase price of the defective Goods.

If City selects repair or replacement, any defects will be remedied without cost to City, including but not limited to, the costs of removal, repair , and replacement of the defective Goods, and reinstallation of new Goods. All such defective Goods that is so remedied will be similarly warranted as stated above. In addition, Supplier will repair or replace other items of the Goods which may have been damaged by such defects or the repairing of the same, all at its own expense and without cost to City.

D. Supplier also warrants that the Goods is free and clear of all liens and encumbrances whatsoever, that Supplier has a good and marketable title to same, and that Supplier owns or has a valid license for all of the proprietary technology and intellectual property incorporated within the Goods. Supplier agrees to indemnify, defend , and hold City harmless against any and all third party claims resulting from the breach or inaccuracy of any of the foregoing warranties.

E. In the event of a breach by Supplier of its obligations under this Section 4, City will not be limited to the remedies set forth in this Section 4 , but will have al l the rights and remedies permitted by applicable law, including without limitation, all of the rights and remedies afforded to City under the California Commercial Code.

Section 5. PRICES.

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to City hereunder; and (ii) all charges for packing, freight and transportation to destination.

Section 6. CHANGES.

City, at any time, by a written order, and without notice to any surety, may make changes in the Goods, including but not limited to, City’s requirements and specifications. If such changes affect the cost of the Goods or time r equired for its performance, an equitable adjustment will be made in the price or time for performance or both. Any change in the price necessitated by such change will be agreed upon between City and Supplier and such change will be authorized by a chang e order document signed by City and accepted by Supplier.

Section 7. PAYMENTS.

B. If Progress Milestones have been specified in Exhibit “B,” then payments for the Goods will be made as the requirements of such Progr ess Milestones are met. Progress payments for the Goods will be made by City upon proper application by Supplier during the progress of the Goods and according to the terms of pa yment as specified in Exhibit “B.” Supplier’s progress billing invoice will include progress payments due for the original scope of work and changes. Each “Item for Payment” shown in Exhibit “B” and each change order will be itemized on the invoice. Inv oices for cost plus work, whether part of Exhibit “B” or a change order, must have subcontractor and/or supplier invoices attached to Supplier’s invoice. Other format and support documents for invoices will be determined by City in advance of the first invoice cycle.

C. Payments otherwise due may be withheld by City on account of def ective Goods not remedied, liens or other claims filed, reasonable evidence indicating probable filing of liens or other claims, failure of Supplier to make payments properly to its subcontractors or for material or labor, the failure of Supplier to perfor m any of its other obligations under the Agreement, or to protect City against any liability arising out of Supplier’s failure to pay or discharge taxes or other obligations. If the causes for which payment is withheld are removed, the withheld payments w ill be made promptly.

If the said causes are not removed within a reasonable period after written notice, City may remove them at Supplier’s expense.

D. Payment of the final Progress Milestone payment or any retention will be made by City upon:

1. Submission of an invoice for satisfactory completion of the requirements of a Progress Milestone as defined in Exhibit “B” and in the amount associated with the Progress Milestone;

2. Written acceptance of the Goods by City;

3. Delivery of all drawings and specifications, if required by City;

4. Delivery of executed full releases of any and all liens arising out of this Agreement; and

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5. Delivery of an affidavit listing all persons who might otherwise be entitled to file, claim, or maintain a lien of any kind or character, and c ontaining an averment that all of the said persons have been paid in full.

If any person refuses to furnish an act ual release or receipt in full, Supplier may furnish a bond satisfactory to City to indemnify City against any claim or lien at no cost to City.

E. Acceptance by Supplier of payment of the final Progress Milestone payment pursuant to Section 7.D will constitute a waiver, release and discharge of any and all claims and demands of any kind or character w hich Supplier then has, or can subsequently acquire a gainst City, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement. However, payment for the final Progr ess Milestone by City will not constitute a waiver, r elease or discharge of any claims or demands which City then has, or can subsequently acquire, against Supplier, its successors and assigns, for or on account of any matter or thing arising out of, or in any manner connected with, the performance of this Agreement.

Section 8. SCHEDULE FOR DELIVERY.

A. The time of Supplier’s performance is of the essence for this Agreement. The Goods will be delivered in accordance with the schedule set forth in Exhibit “B.” Supplier must immediately notify City in writing any time delivery is behind schedule or may not be completed on schedule. In addition to any other rights City may have under this Agreement or at law, Supplier shall pay City the sum of $ [***INSERT AMOUNT ***] per i tem of Goods for each calend ar day for which the item of Goods is unavailable beyond the scheduled delivery date(s) specified in Exhibit “B.” B. In the event that the Goods is part of a larger project or projects that require the coordination of multiple cont ractors or suppliers, then Supplier will fully cooperate in scheduling the delivery so that City can maximize the efficient completion of such project(s).

Section 9. TAXES.

Supplier will deposit, or cause to be deposi ted, in a timely manner with the appropriate taxing authorities all amounts required to be withheld.

C. All other taxes, however denominated or measured, imposed upon the price of the Goods provided hereunder, will be the responsibility of Supplier. In addit ion, all taxes assessed by any taxing jurisdiction based on Supplier property used or consumed in the provision of the Goods such as and including ad valorem, use, personal property and inventory taxes will be the responsibility of Supplier.

D. Supplier will, upon written request, submit to City written evidence of any filings or payments of all taxes required to be paid by Supplier hereunder.

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Section 10. INDEPENDENT CONTRACTOR.

Supplier enters into this Agreement as an independent contractor and not as an employee of City. Supplier shall have no power or authority by this Agreement to bind City in any respect.

Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired o r retained by the Supplier are employees, agents, contractors or subcontractors of the Supplier and not of City. City shall not be obligated in any way to pay any wage claims or other claims made against Supplier by any such employees, agents, contractors or subcontractors or any other person resulting from performance of this Agreement.

Section 11. SUBCONTRACTS.

Unless otherwise specified, Supplier must obtain City’s written permission before subcontracting any portion of the Goods. Except for the insurance require ments in Section 13.A, all subcontracts and orders for the purchase or rental of supplies, materials or equipment, or any other part of the Goods, will require that the subcontractor be bound by and subject to a ll of the terms and conditions of the Agreement. No subcontract or order will relieve Supplier from its obligations to City, including, but not limited to Supplier’s insurance and indemnification obligations. No subcontract or order will bind City.

Section 12. TITLE AND RISK OF LOSS.

Unless otherwise agreed, City will have title to, and risk of loss of, all completed and partially completed portions of the Goods upon delivery, as well as materials delivered to and stored on City property which are intended to becom e a part of the Goods. However, Supplier will be liable for any loss or damage to the Goods and/or the materials caused by Supplier or its subcontractors, their agents or employees, and Supplier will replace or repair said Goods or materials at its own cost to the complete satisfaction of City. Notwithstanding the foregoing, in the event that the City has paid Supplier for all or a portion of the Goods which remains in the possession of Supplier, then City shall have title to, and the right to take posses sion of, such Goods at any time following payment therefor.

Section 13. INDEMNIFICATION.

A. Supplier shall defend, indemnify and hold the City, its o fficials, officers, employees, volunteers and agents f ree and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omiss ions, negligence or willful misconduct of Supplier, its officials, officers, employees, agents, subcontractors and subconsultants arising out of or in connection with the Goods or the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses except such loss or damage which was caused by the sole negligence or willful misconduct of the City.

B. Supplier’s defense obligation for any and all such aforesaid suits , actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers,

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employees, agents, or volunteers shall be at Supplier’s own cost, expense , and risk. Supplier shall pay and satisfy any judgmen t, award , or decree that may be rendered against City or its officials, officers, employees, agents , or volunteers, in any such suit, action , or other legal proceeding.

Supplier shall reimburse City and its officials, officers, employees, agents , and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided.

C. Supplier’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers.

Section 14. INSURANCE.

A. General. Supplier shall take out and maintain:

1. Commercial General Liability Insura nce, of at least $2,000,000 per occurrence/ $4,000,000 aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01;

2. Automobile Liabilit y Insurance for bodily injury and property damage including coverage for owned, non -owned and hired vehicles, of at least $1,000,000 per accident for bodily injury and property damage, at least as broad as most recent Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto);

3. Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and

4. Pollution Liability Insurance of at least $1, 000,000 per occurrence and $2,000,000 aggregate shall be provided by the Supplier if transporting hazardous materials.

5. If Supplier is also the manufacturer of any equipment included in the Goods, Supplier shall carry Product Liability and/or Errors and Omi ssions Insurance which covers said equipment with limits of not less than $1,000,000.

6. Privacy/Network Security (Cyber Liability), of at least $1,000,000 per occurrence and aggregate for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code , in a form and with insurance companies acceptable to the City.

B. Additional Insured; Primary; Waiver of Subrogation; No Limitation on Coverage . The policies required under t his Section shall give City, its officials, officers, employees, agents or volunteers additional ins ured status . Such policies shall contain a provision stating that Supplier’s policy is primary insurance and that any insurance, self -insurance or other coverage maintained by the City or any additional insureds shall not be called upon to contribute to a ny loss, and shall contain or be endorsed with a waiver of subrogation in f avor of the City, its officials, officers, employees, agents, and volunteers. The limits set forth herein shall apply separately to each insured against whom claims are made or sui ts are brought, except with respect to the limits of liability.

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C. Insurance Carrier . All insurance required under this Section is to be placed with insurers with a current A. M. Best’s rating no less than A -:VII, licensed to do business in California , and satisfactory to the City.

D. Evidence of Insurance. Supplier shall furnish City with original certificates of insurance and endorsements effecting coverage required by the Agree ment. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be rec eived and approved by the City before delivery commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

F. Freight. Supplier shall ensure that third party shippers contracted by Supplier have adequate insurance coverage for the shipped Goods.

Section 15. LIENS.

A. Supplier, subcontractors and suppliers will not make, file or maintain a mechanic’s or other lien or claim of any kind or character against the Goods, for or on account of any labor, materials, fixtures, tools, machinery, equipment, or any other things furnished, or any other work done or performance given under, arising out of, or in any m anner connected with the Agreement (such liens or claims referr ed to as “Claims”); and Supplier, subcontractor and suppliers expressly waive and relinquish any and all rights which they now have, or may subsequently acquire, to file or maintain any Claim a nd Supplier, subcontractor and suppliers agree that this provis ion waiving the right of Claims will be an independent covenant.

Section 16. TERMINATION OF AGREEMENT BY CITY.

A. Should Supplier at any time refuse or fail to deliver the Goods with promptness and diligence, or to perform any of its other obligations under the Agreement, City may t erminate Supplier’s right to proceed with the delivery of the Goods by written notice to Supplier. In such event City may obtain the Goods by whatever method it may deem expedient, including the hiring of another contractor or other contractors and, for t hat purpose, may take possession of all materials, machinery, equipment, tools and appliances an d exercise all rights, options and privileges of Supplier. In such case Supplier will not be entitled to receive any further payments until the Goods is delivered. If City’s cost of obtaining the Goods, including compensation for additional managerial and administrative services, will exceed the unpaid balance of the Agreement, Supplier will be liable for and will pay the difference to City.

B. City may, for its own convenience, terminate Supplier’s right to proceed with the delivery of any portion or all of the Goods by written notice to Supplier. Such termination will be effective in

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the manner specified in such notice, will be without prejudice to any claims wh ich City may have against Supplier, and will not affect the obligations and duties of Supplier under the Agreement with respect to portions of the Goods not terminated.

C. On receipt of notice under Section 16.B, Supplier will, with respect to the portion of the Goods terminated, unless the notice states otherwise,

1. Immediately discontinue such portion of the Goods and the placing of orders for materials, facilities, and supplies in connection with the Goods,

2. Unless otherwise directed by City, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to City; and

D. Upon termination pursuant to Section 16.B, Supplier will be paid a pro rata portion of the compensation in the Agreement for any portion of the t erminated Goods already delivered, including material and services for which it has made firm contracts which are not canceled, it being understood that City will be entitled to such material and services. Upon determination of the amount of said pro rata compensation, City will promptly pay such amount to Supplier upon delivery by Supplier of the releases of liens and affidavit, pursuant to Section 7.C.

Section 17. FORCE MAJEURE
A. Supplier shall not be held responsible for failure or delay in shippi ng nor City for failure or delay in accepting goods described herein if such failure or delay is due to a Force Majeure Event.

B. A Force Majeure Event shall mean an e vent that materially affects a P arty’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a pub lic enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the exte nt such strikes and other organized labor action are beyond the control of Supplier and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

C. In the event of any such excused interference with shipments, City shall have the option either to reduce the quantity provided for in the order accordingl y or to exer cise its right of cancellation as set forth in this Agreement.

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Section 18. MISCELLANEOUS PROVISIONS.

A. Delivery of Notices . All notices permitted or r equired under this Agreement shall be given to the respective parties at the following address or at such o ther address as the respective parties may provide in writing for this purpose:

CITY:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: [***INSERT NAME AND TITLE***]

With Copy To:

City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney

SUPPLIER:
[***INSERT NAME, ADDRESS &
CONTACT PERSON***]
Such notice shall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate not ice on the date actual no tice occurred, regardless of the method of service.

B. Assignment or Transfer . Supplier shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of the City, which will not be unreasona bly withheld. Provided, however, that claims for money due or to become due Supplier from the City under this Agreement may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of an y assignment or transfer, whether voluntary or involuntary, shall be furnished promptly to the City.

C. Successors and Assigns . This Agreement shall be binding on the successors and assigns of the Parties.

D. Amendment; Modification . No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

E. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condit ion. No waiver, benefit, privilege , or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.

F. Governing Law . This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

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G. Attorneys’ Fees and Costs . If any action in law or equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, each Party shall pay its own attorneys’ fees.

I. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

J. Authority to Enter Agreement . Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agr eement and bind each respective Party.

K. Invalidity; Severability . If any portion of this Agreement is declared invalid, illegal , or otherwise unenforceable by a court of competent jurisdiction, the remaining provi sions shall continue in full force and effect.

L. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

M. City’s Right to Employ Other Suppliers. City reserves its right to employ other contractors in connection with the Goods.

N. Entire Agreement . Thi s Agreement constitutes the entire agreement between the Parties relative to the Goods specified herein. There are no understandings, agreements, conditions, representations, warranties or promises with respect t o this Agreement, except those contained in or referred to in the writing.

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SIGNATURE PAGE TO GOODS PURCHASE AGREEMENT

BETWEEN THE CITY OF SAN BERNARDINO
AND [***INSERT NAME***]

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

CITY OF SAN BERNARDINO

APPROVED BY:

[***INSERT NAME***]
City Manager

ATTESTED BY:

[***INSERT NAME***]
City Clerk

APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney
[***INSERT SUPPLIER NAME***]

Signature

Name

Title

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Exhibit A
Goods Specifications
[ATTACHED]

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Exhibit B
Delivery Schedule
[ATTACHED]

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Exhibit C
Fee Schedule
[ATTACHED]

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REQUEST FOR VENDOR QUOTES
Project No. RFQ F-23-41

ATTACHMENT “C”

VENDOR QUOTE FORM

VENDOR NAME:

ADDRESS:

PHONE:

The undersigned, hereby declare that they have carefully examined the location of the proposed work, familiarized themselves with the local conditions affecting the cost of the work, and have r ead and examined the terms and conditions for the following Project:

ASPHALT MATERIALS

The undersigned, hereby propose to furnish all labor, materials, equipment, tools, transportation, and services, and to discharge all duties and obligations necessary and required to perform and complete the Project in strict accordance with the Vendor Price Quote for the ELECTRONICALLY SUBMITTED TOTAL VENDOR QUOTE PRICE.

Item No. Description Quantity Unit Cost Total Amount

TOTAL VENDOR QUOTE
Total Number of Additional Pages:

I hereby declare under penalty of perjury that the foregoing is true and correct.

Submitted By: Title:
(Authorized Representative Signature)

Print Name:

Contractor’s License Number and Classification:

DIR Registration Number (if applicable): ____________________________

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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: August 16, 2023
To: Honorable Mayor and City Council Members
From: Charles E. McNeely, Interim City Manager;
Daniel Hernandez, Agency Director of Public Works,
Operations, and Maintenance
Department: Public Works
Subject: Adoption of Ordinance No. MC-1596 - Granting Citation Authority to Security Guard Personnel for Violations of the San Bernardino Municipal Code on City Property
(All Wards)
Recommendation:

It is recommended that the Mayor and City Council of San Bernardino, California, adopt Ordinance No. MC-1596, amending Chapter 9.90 of the San Bernardino Municipal Code, granting citation authority to security guard personnel for violations of the San Bernardino Municipal Code on City property.

Executive Summary
Adoption of Ordinance MC-1596 and amending Chapter 9.90 of the San Bernardino Municipal Code will grant citation authority to private security guard personnel that are contracted with the City for violations of the San Bernardino Municipal Code on any property owned or leased by the City.

Background
The City of San Bernardino has contracted security services for approximately ten years and provides security guard services at City Hall, City Hall campus, City libraries, parks and various Successor Agency properties.

Currently, only certain security guard personnel, limited to off duty, retired, or reserve police officers employed by either the Economic Development Agency of the City or by the Inland Valley Development Agency, have the authority under the San Bernardino Municipal Code to arrest and issue notices to appear for violations of the San Bernardino Municipal Code on specified City property, including the Carousel Mall and the Norton Air Force Base, pursuant to paragraphs 1 and 10 of Section 9.90.010 of the San Bernardino Municipal Code.

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On October 5, 2022, Ordinance MC-1596 was introduced for the first reading to the Mayor and City Council. The Ordinance is now being returned to the Mayor and City Council for a second reading and adoption. The Ordinance will become effective 30 days from the date of adoption.

Discussion
The Public Works Department seeks to grant citation authority to private security guard personnel retained by the City to provide security services under contract with the City for violations of the San Bernardino Municipal Code on any property owned or leased by the City. Extending citation authority to such personnel on all City property is intended to alleviate an undue burden on City departments who currently issue citations and notices to appear for violations of the San Bernardino Municipal Code, including, but not limited to, the Code Enforcement Department and the Police Department.

A new paragraph (19) shall be added to subsection (A) of Section 9.90.010 of Chapter

9.90 of the San Bernardino Municipal Code to state as follows:
“19. Security guard personnel, including private security officers retained by the City to provide security services under contract with the City, are authorized and empowered to issue citations and notices to appear for violations of this Code occurring on any property owned or leased by the City.”
The Ordinance was first introduced to the Mayor and City Council on October 5, 2022.

However, the Ordinance was inadvertently not brought back to the Mayor and City Council for adoption. The Ordinance is now being brought back to the Mayor and City Council for adoption.
2021-2025 Strategic Targets and Goals
The proposed action aligns with Key Target No. 2: Focused, Aligned Leadership and Unified Community. The proposed action would maximize existing resources by granting security guard personnel the authority to enforce provisions of the San Bernardino Municipal Code on all City property.

Fiscal Impact
There is no fiscal impact related to this proposed action.

Conclusion
It is recommended that the Mayor and City Council of San Bernardino, California, adopt Ordinance No. MC-1596, amending Chapter 9.90 of the San Bernardino Municipal Code, granting citation authority to security guard personnel for violations of the San Bernardino Municipal Code on City property.

Attachments
Attachment 1 Proposed Ordinance No. MC-1596

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Ward:

All Wards
Synopsis of Previous Council Actions:

October 5, 2022 Mayor and City Council Introduced, Read By Title Only, and Waived Further Reading of Ordinance No. MC-1596 - An
Ordinance of the Mayor and City Council of the City of San Bernardino, California, amending Chapter 9.90 of the San Bernardino Municipal Code, granting citation authority to security guard personnel for violations of the San Bernardino Municipal Code on city property.

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ORDINANCE NO. MC-1596

AN ORDINANCE OF THE MAYOR AND CITY COUNCIL

OF THE CITY OF SAN BERNARDINO, CALIFORNIA,
AMENDING CHAPTER 9.90 OF THE SAN BERNARDINO

MUNICIPAL CODE, GRANTING CITATION AUTHORITY

TO SECURITY GUARD PERSONNEL FOR VIOLATIONS

OF THE SAN BERNARDINO MUNICIPAL CODE ON CITY

PROPERTY
WHEREAS, the City San Bernardino, California (“City”) is a chartered city and municipal corporation, duly organized under the California Constitution and laws of the State of California; and
WHEREAS, pursuant to the police powers delegated to it by the California Constitution, the City has the authority to enact laws which promote the public health, safety, and general welfare of its citizens; and
WHEREAS, the City desires to give citation authority to security guard personnel retained by the City for violations of the San Bernardino Municipal Code on City property; WHEREAS, the City is not changing any regulations or penalties associated with violations of the San Bernardino Municipal Code; and
WHEREAS, the granting of citation authority to security guard personnel retained by the City could maximize resources and reduce the burdens of other City departments who currently issue citations and notices to appear for violations of the San Bernardino Municipal Code, including, but not limited to, the Code Enforcement Department and the Police Department.

THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS:

SECTION 1. The above recitals are true and correct and are hereby incorporated herein by this reference.

SECTION 2. A new paragraph (19) shall be added to subsection (A) of Section 9.90.010 of Chapter 9.90 of the San Bernardino Municipal Code to state as follows:
“19. Security guard personnel, including private security officers retained by the City to provide security services under contract with the City, are authorized and empowered to issue citations and notices to appear for violations of this Code occurring on any property owned or leased by the City.”
SECTION 3. Effective Date. This Ordinance shall take effect thirty (30) days after its adoption.

SECTION 4. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance, or any part thereof, is for any reason held to be unconstitutional,

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Ordinance No. MC-1596

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Mayor and City CouncilAugust 16, 2023

Mayor and City Council
August 16, 2023